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DEFENDANT PRESENTED SUFFICIENT SPECIFIC FACTS TO REBUT THE PRESUMPTION OF PROPER SERVICE OF THE SUMMONS AND COMPLAINT; A HEARING SHOULD HAVE BEEN HELD (SECOND DEPT). ​

The Second Department, reversing Supreme Court, determined defendant Bloom was entitled to a hearing on whether she was served with the summons and complaint:

Here, the affidavit of the plaintiff’s process server indicated that the process server served Bloom at an address on Avenue W in Brooklyn (hereinafter the Avenue W address) by delivering a copy of the summons and complaint upon a cotenant, who was a person of suitable age and discretion, on May 4, 2019, and mailing a copy of the summons and complaint to Bloom at the Avenue W address on May 6, 2019. However, Bloom’s submission of a sworn statement in which she denied that she resided at the Avenue W address, and a copy of her driver license, which listed a different address as her residence at the time that service upon her was allegedly effectuated, contained specific facts to rebut the statements in the process server’s affidavit … . Therefore, the presumption of proper service upon Bloom was rebutted and the Supreme Court should have held a hearing to determine whether Bloom was properly served pursuant to CPLR 308(2) … . Garrick v Charles, 2023 NY Slip Op 06353, Second Dept 12-13-23

Practice Point: Here defendant presented specific facts sufficient to rebut the presumption of proper services of process. A hearing should have been ordered.

 

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DEFENDANT’S MOTION TO RENEW A MOTION FOR MORE TIME TO CONDUCT AN IME SHOULD HAVE BEEN GRANTED; CRITERIA EXPLAINED (SECOND DEPT). ​

The Second Department, reversing Supreme Court, determined the motion to renew should have been granted and defendant should have been granted more time to conduct an independent medical examination (IME) of plaintiff:

“A motion for leave to renew or reargue is addressed to the sound discretion of the Supreme Court” … . A motion for leave to reargue “shall be based upon matters of fact or law allegedly overlooked or misapprehended by the court in determining the prior motion, but shall not include any matters of fact not offered on the prior motion” (CPLR 2221[d][2]). A motion for leave to renew “shall be based upon new facts not offered on the prior motion that would change the prior determination” … and “shall contain reasonable justification for the failure to present such facts on the prior motion” … . “A combined motion for leave to reargue and leave to renew shall identify separately and support separately each item of relief sought” … . …

The Supreme Court improvidently exercised its discretion in denying, without prejudice, that branch of the defendant’s motion which was for leave to renew. The defendant presented new facts and a reasonable justification for failing to present such facts on the prior motion, and demonstrated that the new evidence would have changed the prior determination … . Moreover, the papers submitted by the defendant in support of the motion, as supplemented by the papers submitted by the plaintiff, which expressly incorporated the plaintiff’s prior opposition, were sufficient to determine the motion …. Fulcher v Empire State Grand Council Ancient & Accepted Scottish Rite Masons, Inc., 2023 NY Slip Op 06352, Second Dept 12-13-24

Practice Point: The motion to renew presented new facts and a reasonable justification for failing to present those facts in the prior motion. The motion should have been granted.

 

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​PLAINTIFF’S FIRST EMPLOYMENT DISCRIMINATION COMPLAINT WAS DISMISSED FOR FAILURE TO STATE A CAUSE OF ACTION UNDER THE NYS HUMAN RIGHTS LAW; PLAINTIFF’S SECOND COMPLAINT STATED A CAUSE OF ACTION UNDER THE SAME STATUTE; THE SECOND COMPLAINT WAS NOT BARRED BY THE DOCTRINE OF RES JUDICATA (SECOND DEPT). ​

The Second Department, reversing Supreme Court, determined plaintiff stated a cause of action for employment discrimination under the New York State Human Rights Law (NYSHRL). Plaintiff had filed a prior complaint which was properly dismissed for failure to state a cause of action. Plaintiff then filed the instant complaint under the same statute by on different grounds. The instant complaint was not precluded the the doctrine of res judicata:

… [T]his cause of action was not barred by the doctrine of res judicata. That doctrine “precludes a party from relitigating a claim that has been finally adjudicated on the merits” …  “Although, generally, a dismissal for failure to state a cause of action based on the insufficiency of the allegations in the pleading is not a dismissal on the merits, and does not bar the adequate repleading of the claim in a subsequent action, such a determination has preclusive effect as to a new complaint for the same cause of action which fails to correct the defect or supply the omission determined to exist in the earlier complaint” … . The first cause of action alleged in the present complaint was distinct from that alleged in the prior action, the latter of which was based upon an alleged failure of the defendants, among others, to provide a reasonable accommodation in the form of certain medical leave, as well as retaliation for engaging in a protected activity. Thus, the dismissal of those causes of action under CPLR 3211(a)(7) did not bar the first cause of action asserted in the present complaint. Duchemin v Village of E. Hampton, 2023 NY Slip Op 06350, Second Dept 12-13-24

Practice Point: Here the first complaint alleging employment discrimination was dismissed for failure to state a cause of action. That is not considered a dismissal on the merits. Therefore the second employment-discrimination complaint, brought under the same body of law, was not precluded by the doctrine of res judicata.

 

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THE NOTICE TO ADMIT SOUGHT CONCESSIONS THAT WENT TO THE ESSENCE OF THE CONTROVERSY AND THEREFORE WAS PALPABLY IMPROPER (SECOND DEPT).

The Second Department, reversing Supreme Court, determined the notice to admit in this breach of contract action was palpably improper:

CPLR 3123(a) authorizes the service of a notice to admit upon a party, and provides that if a timely response thereto is not served, the contents of the notice are deemed admitted … . However, the purpose of a notice to admit is only to eliminate from contention those matters which are not in dispute in the litigation and which may be readily disposed of … . A notice to admit is not to be employed to obtain information in lieu of other disclosure devices, or to compel admissions of fundamental and material issues or contested ultimate fact … .

… [T]he notice to admit at issue sought concessions that go to the essence of the controversy … . Thus, the … defendants could not have reasonably believed that the admissions they sought were not in substantial dispute … , and the notice to admit was palpably improper … . Moreover, the information sought in the notice to admit may be obtained through discovery, including depositions … . American Bldrs. & Contrs. Supply Co., Inc. v Vinyl is Final, Inc., 2023 NY Slip Op 06346, Second Dept 12-13-24

Practice Point: A notice to admit which seeks concessions at the heart of the controversy is palpably improper and should be struck.

 

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IN THIS TRAFFIC ACCIDENT CASE, THE PASSENGER IN PLAINTIFF’S CAR EXECUTED A RELEASE IN FAVOR OF PLAINTIFF-DRIVER; DEFENDANT’S COUNTERCLAIM FOR CONTRIBUTION FROM PLAINTIFF FOR ANY INJURY SUFFERED BY THE PASSENGER SHOULD HAVE BEEN DISMISSED (SECOND DEPT).

The Second Department, reversing Supreme Court, determined the release executed by the passenger (Jelissa) in favor of the plaintiff-driver (Nicole) required the dismissal of the defendant’s counterclaim seeking contribution for any injuries suffered by Jelissa:

Pursuant to General Obligations Law § 15-108(b), “[a] release given in good faith by the injured person to one tortfeasor as provided in [General Obligations Law § 15-108(a)] relieves him [or her] from liability to any other person for contribution as provided in article fourteen of the civil practice law and rules.” Here, pursuant to General Obligations Law § 15-108(b), the release executed by Jelissa in favor of Nicole relieves Nicole from liability to the defendant for contribution … . Moraskin v Lati, 2023 NY Slip Op 06362, Second Dept 12-13-23

Practice Point: Here in this traffic accident case, the passenger in plaintiff’s car released plaintiff-driver from any liability. Therefore the defendant’s counterclaim against plaintiff for contribution for any injury to the passenger should have been dismissed.

 

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THE ATTORNEY FOR PLAINTIFF IN A PERSONAL INJURY ACTION WAS DISCHARGED WITHOUT CAUSE AFTER A SETTLEMENT HAD BEEN REACHED; THE ATTORNEY SHOULD NOT HAVE BEEN AWARDED A JUDGMENT FOR THE CONTINGENCY FEE; RATHER THE ATTORNEY SHOULD HAVE BEEN AWARDED A CHARGING LIEN PURSUANT TO THE JUDICIARY LAW (SECOND DEPT).

The Second Department, reversing (modifying) Supreme Court, determined the attorney (Sparrow) who was discharged without cause after a settlement was reached in a personal injury action should have been awarded a charging lien, not a judgment against the former client (Messina):

“An attorney of record who is discharged without cause possesses a charging lien pursuant to Judiciary Law § 475 which constitutes an equitable ownership of the cause of action and attaches to any recovery” … . Thus, under Judiciary Law § 475, “the attorney who appears for a party has a lien upon his or her client’s cause of action, claim or counterclaim, which attaches to a verdict, report, determination, decision, award, settlement, judgment or final order in his or her client’s favor, and the proceeds thereof in whatever hands they may come; and the lien cannot be affected by any settlement between the parties before or after judgment, final order or determination.”

“Although the amount of a charging lien may be determined and fixed before the outcome of the case, the charging lien does not provide for an immediately enforceable judgment against all assets of the former clients” … . “Rather, the lien is security against a single asset of the client—a judgment or settlement reached in favor of the former client in the underlying matter” … .

Here, since Sparrow specifically sought to establish a charging lien pursuant to Judiciary Law § 475, plus a determination as to the amount of the charging lien, and since, at the time of the hearing, the action remained pending, and, therefore, Messina’s [the former client’s] cause of action had not resulted in an outcome in his favor (see id. § 475), the Supreme Court should not have entered a money judgment against Messina … . Messina v Wedderburn, 2023 NY Slip Op 06360, Second Dept 12-13-23

Practice Point: In a personal injury action where the attorney is to be paid a contingency fee, the attorney who has negotiated a settlement and was discharged without cause has the right to a charging lien, not a judgment, against the former client.

 

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THE COURTS CAN COMPEL (MANDAMUS) THE INDEPENDENT REDISTRICTING COMMISSION (IRC) TO DRAW THE LEGISLATIVE DISTRICTS; THE IRC IS ORDERED TO SUBMIT ITS REDISTRICTING PLAN BY FEBRUARY 28, 2024 (CT APP). ​

The Court of Appeals, affirming the Appellate Division, in a full-fledged opinion by Judge Wilson, over a three-judge dissenting opinion, determined the courts can compel (mandamus) the Independent Redistricting Commission (IRC) to draw the legislative districts. The opinion is far too comprehensive to fairly summarize:

In 2014, the voters of New York amended our Constitution to provide that legislative districts be drawn by an Independent Redistricting Commission (IRC). The Constitution demands that process, not districts drawn by courts. Nevertheless, the IRC failed to discharge its constitutional duty. That dereliction is undisputed. The Appellate Division concluded that the IRC can be compelled to reconvene to fulfill that duty; we agree. There is no reason the Constitution should be disregarded. Matter of Hoffmann v New York State Ind. Redistricting Commn., 2023 NY Slip Op 06344, CtApp 12-12-23

Practice Point: The courts have the power to compel the Independent Redistricting Commission (IRC) to submit a redistricting plan. The IRC was ordered to do so by February 28, 2024.

 

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THE STIPULATION OF SETTLEMENT INCORPORATED BUT NOT MERGED IN THE JUDGMENT OF DIVORCE WAS UNAMBIGUOUS AND PROVIDED EACH PARTY WAS RESPONSIBLE FOR THEIR OWN ATTORNEY’S FEES; IT WAS THEREFORE ERROR TO AWARD FATHER ATTORNEY’S FEES (THIRD DEPT).

The Third Department, reversing (modifying) Supreme Court, determined that the stipulation incorporated but not merged in to the judgment of divorce, which provided that each party was responsible for their own attorney’s fees, controlled. Therefore the award of attorney’s fees to father was error:

… [T]he parties executed a written stipulation of settlement containing the provision, “as and for a global resolution, each party shall be responsible for the payment of his and her respective attorney fees.”

“A stipulation of settlement that is incorporated but not merged into a judgment of divorce is a contract subject to principles of contract construction and interpretation” … . “Generally, where the parties have agreed to provisions in a settlement agreement which govern the award of attorney’s fees, the agreement’s provisions, rather than statutory provisions, control” … . If the contract is clear and unambiguous, it is to be interpreted so as to give effect to the parties’ intent and the intent is to be gleaned from within the four corners of the document … . Here, the fees awarded were as a result of the initial custody determination, and a review of the stipulation of settlement reveals no ambiguity as the agreement clearly provides that each party is to be responsible for his and her respective counsel fees and we must give its terms their plain meaning … . Moreover, in rendering its determination, Supreme Court did not reference the stipulation’s express provision that each parent shall be responsible for his and her counsel fees, thus, it erred in awarding the father counsel fees … . Daryl N. v Amy O., 2023 NY Slip Op 06286, Third Dept 12-7-23

Practice Point: A stipulation of settlement incorporated but not merged into a judgment of divorce is a contract which supersedes statutory provisions. The unambiguous provision in the stipulation that each party is responsible for their own attorney’s fees controls. Attorney’s fees should not have been awarded to father.

 

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ALTHOUGH VOLUNTARY PAYMENTS ON A DEFAULT JUDGMENT MAY WAIVE THE PERSONAL JURISDICTION DEFENSE TO THE FAILURE TO MOVE TO VACATE A DEFAULT JUDGMENT WITHIN A YEAR, HERE THE GARNISHMENT OF DEFENDANT’S WAGES FOR MORE THAN A YEAR DID NOT WAIVE THE DEFENSE (FIRST DEPT). ​

The First Department, reversing Supreme Court, determined defendant did not waive the personal jurisdiction defense (CPLR 5015(a)(4)) by waiting more that a year to move to vacate the default judgment, despite the garnishment of defendant’s wages during that time. Voluntary payments on a default judgment would have waived the defense, but not garnishment:

The proper approach for determining whether a defendant has waived the CPLR 5015(a)(4) personal jurisdiction defense involves the consideration of whether the defendant’s particular actions amount to “an intentional relinquishment of a known right” … , and results from the taking of some affirmative action evincing the intent to accept a judgment’s validity — such as the making of voluntary payments to satisfy a default judgment prior to moving to vacate … . The mere fact that a defendant, like defendant here, was subject to payments pursuant to a wage garnishment order for more than one year without taking some action is not, without more, a proper basis for finding waiver of the ability to seek relief under CPLR 5015(a)(4) … . Esgro Capital Mgt., LLC v Banks, 2023 NY Slip Op 06312, First Dept 12-7-23

Practice Practice: Making voluntary payments on a default judgment would waive a defendant’s personal-jurisdiction defense to the failure to move to vacate a default judgment within a year. But the garnishment of defendant’s wages for more than a year did not waive the defense.

 

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ALTHOUGH PLAINTIFFS DO NOT CONTEST THE APPEALS AND WILL NOT PURSUE THE LITIGATION, THE APPEALS ARE NOT MOOT BECAUSE THE ORDER MAY AFFECT RELATED ACTIONS AGAINST THE DEFENDANTS; THE SUMMARY JUDGMENT MOTION, BROUGHT BEFORE DEFENDANTS ANSWERED THE COMPLAINT, WAS PREMATURE (FIRST DEPT).

The First Department, reversing Supreme Court, determined (1) despite the fact that the plaintiffs indicated they do not contest the appeals and will not pursue the action which had been dismissed, the appeals are not moot because the dismissal may affect related actions against the defendants; and (2) the plaintiff’s summary judgment motion, brought before the defendants had answered the amended complaint, was premature:

While plaintiffs do not contest the appeals and have represented that they will not be pursuing the underlying litigation, this does not render defendants’ appeals moot. The mootness doctrine will deprive a court of the ability to review a case where a change in circumstances between the parties has eliminated the controversy that once existed … . However, an appeal is not moot where “the rights of the parties will be directly affected by the determination of the appeal and the interest of the parties is an immediate consequence of the judgment” … . Defendants have the right to appeal the order addressing the motion to dismiss because it may serve as unfavorable precedent in related cases that have been brought against them. Hutcher v Madison Sq. Garden Entertainment Corp., 2023 NY Slip Op 06314, First Dept 12-7-23

Practice Point: An appeal is not moot when it is not contested if the order appealed from could affect related actions against the appellants.

 

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