You are here: / Civil Procedure
,

HERE THERE WAS A QUESTION OF FACT ABOUT WHEN THE PLAINTIFFS BECAME AWARE OF THE ALLEGED FRAUD; THEREFORE THE COMPLAINT SHOULD NOT HAVE BEEN DISMISSED AS TIME-BARRED (FIRST DEPT).

The First Department, reversing Supreme Court, determined there was a question of fact concerning when the plaintiffs became aware of the alleged fraud. Therefore the complaint should not have been dismissed as time-barred:

Fraud claims must be commenced within “the greater of six years from the date the cause of action accrued or two years from the time the plaintiff . . . discovered the fraud, or could with reasonable diligence have discovered it” (CPLR 213[8]). * * *

Assuming, arguendo, that defendants met their prima facie burden on the motion, an issue of fact exists as to whether plaintiffs were on inquiry notice of the fraud more than two years before they commenced the action … . Murray v Stone, 2023 NY Slip Op 01749, First Dept 3-30-23

Practice Point:  A fraud action must be brought within six years of accrual or two years of discovery of the fraud.

 

, ,

WHEN A JUDGE MAKES A WRONG RULING WHICH CANNOT BE APPEALED BECAUSE IT WAS NOT PROMPTED BY A MOTION, A MOTION TO SET ASIDE THE ORDER PURSUANT TO CPLR 5015 IS AN APPROPRIATE REMEDY; THE DENIAL OF THE MOTION TO SET ASIDE CAN BE APPEALED, AS WAS SUCCESSFULLY DONE HERE (FIRST DEPT).

​The First Department, reversing Supreme Court, determined Supreme Court should not have dismissed the complaint pursuant to CPLR 3216 because no motion to dismiss had been made and plaintiff was not given any warning or an opportunity to respond. The court noted that when a judge makes a wrong ruling, here the dismissal of the complaint, the proper procedure is a motion to set aside the order pursuant to CPLR 5015. The motion to set aside should have been granted:

A trial court has inherent power, as well as statutory power under CPLR 5015, to set aside an order on appropriate grounds … . “Vacating the dismissal order is consistent with the public policy of this State to dispose of cases on their merits and upholds the principle that a trial court’s power to dismiss an action sua sponte should be used sparingly and only in extraordinary circumstances” … .

There were no extraordinary circumstances warranting the complaint’s dismissal. Wohnberger v Lucani, 2023 NY Slip Op 01758, First Dept 3-30-23

Practice Point: Here no motion to dismiss the complaint pursuant to CPLR 3216 was made, but the judge dismissed the complaint sua sponte. A motion to set aside the order dismissing the complaint pursuant CPLR 5015 was made and denied. The denial was then successfully appealed here. This is the appropriate remedy when no appeal lies from the original order because the order was not issued pursuant to a motion.

 

PLAINTIFF’S MOTION TO AMEND ITS REPLY TO A COUNTERCLAIM TO ADD THE STATUTE OF LIMITATIONS DEFENSE SHOULD HAVE BEEN GRANTED; THE PROPOSED AMENDMENT WAS NOT PALPABLY IMPROPER AND DEFENDANT SHOWED THERE WAS NO PREJUDICE BY NOT OPPOSING THE MOTION TO AMEND (SECOND DEPT).

​The Second Department, reversing Supreme Court, determined plaintiff’s motion to amend a reply to a counterclaim to add the statute-of-limitations affirmative defense should have been granted, noting that mere lateness is not an adequate ground for denial of a motion to amend. The court also noted that defendant’s failure to oppose the motion demonstrated a lack of prejudice:

“In the absence of prejudice or surprise resulting directly from the delay in seeking leave, applications to amend or supplement a pleading ‘are to be freely granted unless the proposed amendment is palpably insufficient or patently devoid of merit'” (… see CPLR 3025[b]). “The burden of demonstrating prejudice or surprise, or that a proposed amendment is palpably insufficient or patently devoid of merit, falls upon the party opposing the motion” … . “The determination to permit or deny amendment is committed to the sound discretion of the trial court” … .

Here, the record reflects that the proposed amendment was neither palpably insufficient nor patently devoid of merit. Moreover, while the plaintiff’s motion pursuant to CPLR 3025(b) was made more than eight months after its original verified reply, “‘[m]ere lateness is not a barrier to the amendment. It must be lateness coupled with significant prejudice to the other side, the very elements of the laches doctrine'” … . In this case, having failed to oppose the motion, [defendant] failed to satisfy its burden of demonstrating any prejudice or surprise. Toiny, LLC v Rahim, 2023 NY Slip Op 01702, Second Dept 3-29-23

Practice Point: Motions to amend pleadings should rarely be denied. Mere lateness in moving to amend is not an adequate reason for denial.

 

THE COVID EXECUTIVE ORDERS TOLLING THE STATUTES OF LIMITATIONS APPLY TO THE TIME FOR ANSWERING A MOTION FOR SUMMARY JUDGMENT IN LIEU OF COMPLAINT (SECOND DEPT).

The Second Department, reversing Supreme Court, determined the COVID executive orders tolling the statute of limitations applied to the time to oppose a motion for summary judgment in lieu of complaint:

In Brash v Richards, this Court determined that Executive Order 202.8 and the subsequent executive orders acted to toll those specific time limits contained in the CPLR and listed in the executive orders … . Executive Order 202.8 and the subsequent executive orders “appear to apply to the service of the notice of appearance” … , but “do[ ] not expressly apply to toll the defendant’s time to serve an answer” … . However, given the hybrid nature of the “motion-action” under CPLR 3213, in which the filing of answering papers is akin to the service of a notice of appearance or an answer … , combined with the desire to preserve the status quo for litigants during the COVID-19 pandemic … , under Executive Order 202.8 and the subsequent executive orders, neither defendant was required to appear and file answering papers … . Blue Lagoon, LLC v Reisman, 2023 NY Slip Op 01657, Second Dept 3-29-23

Practice Point: COVID executive orders tolling statutes of limitations apply to the time to answer a motion for summary judgment in lieu of complaint.

 

, ,

THE COURT’S INQUIRY ON MOTIONS TO DISMISS AN ARTICLE 78 PETITION, A COMPLAINT, AND/OR A REQUEST FOR A DECLARATORY JUDGMENT SHOULD RARELY GO BEYOND WHETHER, ASSUMING THE TRUTH OF THE ALLEGATIONS, A CAUSE OF ACTION HAS BEEN STATED (SECOND DEPT).

The Second Department, reversing Supreme Court, noted that the inquiry on motions to dismiss should rarely go beyond determining whether a cause of action has been stated. The action here alleged violations of the Sewage Pollution Right to Know Act (ECL 17-0825-a):

“On a motion pursuant to CPLR 7804(f) to dismiss a petition, only the petition is to be considered, all of its allegations are to be deemed true, and the petitioner is to be accorded the benefit of every possible inference” … , On a motion pursuant to CPLR 3211(a)(7), “[c]ourts may consider extrinsic evidence outside of the pleading’s four corners to help determine whether the pleading party has a cause of action, as distinguished from whether the pleading simply states a cause of action” … . However, affidavits submitted by a movant “will almost never warrant dismissal under CPLR 3211 unless they establish conclusively that [petitioner] has no [claim or] cause of action” … . …

The petition/complaint also states a viable cause of action for declaratory relief. A motion to dismiss the complaint in an action for a declaratory judgment “‘presents for consideration only the issue of whether a cause of action for declaratory relief is set forth, not the question of whether the plaintiff is entitled to a favorable declaration'” … . Matter of Riverkeeper, Inc. v New York City Dept. of Envtl. Protection, 2023 NY Slip Op 01679, Second Dept 3-29-23

Practice Point: A court’s inquiry on motions to dismiss an Article 78 petition, a complaint and/or a request for declaratory judgment should rarely go beyond whether a cause of action has been stated.

 

, , ,

ABSENT A STIPULATION BY THE PARTIES, FAMILY COURT SHOULD NOT HAVE WITHDRAWN THE FAMILY OFFENSE PETITION (SECOND DEPT). ​

The Second Department, reversing Family Court, determined the family offense petition should not have been withdrawn by the judge because the parties did not stipulate to the withdrawal:

Where, as here, the matter has been submitted to the court, “the court may not order an action discontinued except upon the stipulation of all parties appearing in the action” (CPLR 3217[b]). In this case, there was no stipulation from the parties. Thus, the court erred in directing that the petition was withdrawn … . Matter of Johnson v Lomax, 2023 NY Slip Op 01675, Second Dept 3-29-23

Practice Point: A judge cannot withdraw a family offense petition which has been submitted to the court without a stipulation by the parties.

 

,

THE ARTICLE 78 PETITION SOUGHT RELIEF NOT AVAILABLE IN SUCH A PROCEEDING (REMOVAL OF A TERRACE CONSTRUCTED ABOVE PETITIONER’S RESIDENCE); THE APPELLATE COURT CONVERTED THE PETITION TO A COMPLAINT PURSUANT TO CPLR 103 (SECOND DEPT).

The Second Department determined the Article 78 petition seeking the removal of a terrace constructed above petitioner’s property sought relief not available pursuant to Article 78 but converted the petition to a complaint pursuant to CPLR 103[c]:

RPAPL 871(1) authorizes the owner of any legal estate in land to maintain an action for an injunction directing the removal of a structure encroaching on such land. “Even where the facts which would justify the grant of [such] an extraordinary remedy are established, the court must still decide whether, in the exercise of a sound discretion, it should grant the remedy, and if granted, the terms and conditions which should be annexed to it” … . Consequently, that branch of the petition which was to compel the respondents to remove the terrace did not seek the performance of a purely ministerial act which can be obtained in a CPLR article 78 proceeding … .

Pursuant to CPLR 103(c), however, a proceeding should not be dismissed “solely because it is not brought in the proper form,” and this Court has the power to convert a proceeding into the proper form … . Under the circumstances, we convert so much of the proceeding as sought to compel the respondents to remove the terrace into an action, deem that branch of the petition which was to compel the respondents to remove the terrace to be the complaint, and remit the matter to the Supreme Court, Queens County, for further proceedings on the complaint. Matter of Dicker v Glen Oaks Vil. Owners, Inc., 2023 NY Slip Op 01673, Second Dept 3-29-23

Practice Point: An Article 78 proceeding is not appropriate for relief beyond a ministerial act, here the removal of a terrace constructed above petitioner’s residence. Here the appellate court converted the petition to a complaint seeking that relief pursuant to CPLR 103.

 

, ,

IN AN INQUEST ON DAMAGES AFTER DEFENDANT DEFAULTED, THE JUDGE SHOULD NOT HAVE CONSIDERED LIABILITY ISSUES (SECOND DEPT).

The Second Department, reversing Supreme Court, determined the judge should not have considered issues of liability in the inquest on damages after defendant’s default:

After conducting the inquest, the court found … that the plaintiff had failed to proffer credible evidence that the accident occurred or that she had sustained an injury that was caused by the defendants, and directed the dismissal of the complaint. …

By defaulting, the defendants admitted “all traversable allegations in the complaint, including the basic allegation of liability” … . As such, the sole issue to be determined at the inquest was the extent of the damages sustained by the plaintiff, and the Supreme Court should not have considered issues of liability … . Youngja Lee v Hong Kong Supermarket, 2023 NY Slip Op 01668, Second Dept 3-29-23

Practice Point: A judge should not consider issues of liability in an inquest on damages after the defendant’s default.

 

, , ,

PRECLUSION OF EVIDENCE AS A DISCOVERY SANCTION WAS NOT WARRANTED; THERE WAS NO EVIDENCE OF WILLFUL OR CONTUMACIOUS CONDUCT AND THE SANCTIONED PARTY WAS NOT GIVEN AN OPPORTUNITY TO EXPLAIN THE FAILURE TO COMPLY WITH DISCOVERY ORDERS (SECOND DEPT).

The Second Department, reversing Supreme Court, determined the discover sanctions imposed by the judge on plaintiff were not warranted:

… Supreme Court improvidently exercised its discretion by imposing the drastic sanction of preclusion upon the plaintiff without affording the plaintiff adequate notice and an opportunity to be heard, including on facts relevant to whether the plaintiff’s noncompliance was willful and contumacious. The defendant did not move for sanctions pursuant to CPLR 3126 due to the plaintiff’s failure to comply with the interim order, nor did the court make its own motion or include language in the interim order warning that noncompliance would result in sanctions. The court also made its determination without oral argument, such that it is unclear what opportunity the plaintiff had to explain the circumstances of its noncompliance. …

… [E]ven if the plaintiff had been provided with adequate due process, the Supreme Court still would have improvidently exercised its discretion by, inter alia, precluding the plaintiff from serving further demands and from introducing certain documents. The record contains no showing of “a clear pattern of willfulness and contumacious conduct necessary to justify [such] sanctions” … . There is no indication that the plaintiff “repeated[ly] fail[ed] to comply with court-ordered discovery” or “fail[ed] to comply with court-ordered discovery over an extended period of time” … . Instead, this case involves a “single incident of noncompliance” with a court order, which was insufficient to warrant a sanction as drastic as preclusion … , especially given the policy of resolving cases on their merits and the fact that discovery was still ongoing at the time the court made its determination. Korsinsky & Klein, LLP v FHS Consultants, LLC, 2023 NY Slip Op 01667, Second Dept 3-29-23

Practice Point; Before precluding evidence as a discovery sanction, there must be a finding of willful and contumacious conduct and the the sanctioned party must be given a chance to explain the failure to comply with discovery orders.

 

,

WHERE A STATUTE, HERE CIVIL RIGHTS LAW 40-B, PRESCRIBES A MONETARY REMEDY, AN INJUNCTION IS NOT AVAILABLE (FIRST DEPT).

​The First Department, reversing Supreme Court, determined plaintiffs’ request for a preliminary injunction in this Civil Rights Law 40-b action should not have been granted because the remedy is statutory. Civil Rights Law 40-b prohibits an entertainment venue from denying entry to a person who has a ticket:

… [I]t was improper for the motion court to issue a preliminary injunction. As Civil Rights Law § 41 prescribes a monetary remedy for violations of Civil Rights Law § 40-b, plaintiffs are limited to that remedy (see Woollcott v Shubert , 169 App Div 194, 197 [1st Dept 1915] [“The general rule is that where a statute creates a right and prescribes a remedy for its violation that remedy is exclusive and neither an action for damages nor for an injunction can be maintained”] …). Even if injunctive relief were available, the existence of a statutory damages remedy would undermine plaintiffs’ claims of irreparable harm … . Hutcher v Madison Sq. Garden Entertainment Corp., 2023 NY Slip Op 01646, First Dept 3-28-23

Practice Point: Here the statute, Civil Rights Law 40-b, prescribed a monetary remedy for a violation. Therefore Supreme Court should not have granted plaintiffs’ request for a preliminary injunction.

 

Categories

Sign Up for the Mailing List to Be Notified When the Site Is Updated.

  • This field is for validation purposes and should be left unchanged.

Copyright © 2026 New York Appellate Digest, Inc.
Site by CurlyHost | Privacy Policy