Civil Procedure Update April – June 2022 – Part 2 of 3

Civil Procedure Update April – June 2022 – Part 2

(Nontransitional) Prerecorded Audio (On Demand/Recorded-Audio)

Appropriate for Experienced Attorneys

Areas of Professional Practice: 3 CLE Credit Hours

Note: Before Relying On Any Decision Summarized on this Site, Including the Summaries in the CLE Written Materials, Make Sure It Remains Good Law Using the Method You Trust for that Purpose. See the Discussion Under “Shepardize” in the “How to Use the New York Appellate Digest” Section on the Home Page.

This course organizes summaries of decisions by the New York State appellate courts (Appellate Division and Court of Appeals) released between April 1, 2022 and June 30, 2022 which address issues in “Civil Procedure.”

The “Civil Procedure” decision-summaries posted weekly on the New York Appellate Digest website are organized in monthly Reversal Reports which are accessed in the “Update Service.” The monthly Reversal Reports comprise the written materials for these monthly CLE courses. The course is divided into three parts: Part 1 is based on the April 2022 Reversal Report; Part 2 is based on the May 2022 Reversal Report; Part 3 is based on the June 2022 Reversal Report. The link to the May 2022 Reversal Report is below.

As you listen to the course, you will hear verification codes. After finishing Part 3 of the course, print and fill out the “Attorney Affirmation,” including the verification codes, your name, your signature, and the date you completed the course. Please also fill out the attached “Evaluation Survey” (the CLE Board requires that I collect and preserve the Evaluation Surveys). The links to the “Attorney Affirmation” and “Evaluation Survey” are on the podcast page for Part 3 of this course. Scan the “Attorney Affirmation” and the “Evaluation Survey” and email them as attachments to me, Bruce Freeman, at NewYorkAppellateDigest@gmail.com. I will email to you the completed “New York CLE Certificate of Attendance,” as an attachment, awarding you credit for the 3 credit-hour course. Or, if you wish to send and receive hard copies by regular mail, send the “Attorney Affirmation” and “Evaluation Survey” to New York Appellate Digest, LLC, 126 Colonial Village Road, Rochester, New York 14625 and make sure to include your return address.

Click on the link below for the written materials for Part 1: Civil Procedure Reversal Report May 2022).

The media player for this course is at the bottom of the page.

Links to the Attorney Affirmation and Evaluation Form are on the podcast page for Part 3 of this course.

Civil Procedure Reversal Report May 2022

Topics Covered in the “Civil Procedure Reversal Report May 2022” Are Described Below; the Numbers Refer to the Page Numbers in the Report

MAY 2022 REVERSAL REPORT

AMENDMENT OF AFFIDAVIT OF SERVICE. 6

DEFENDANT RAISED A QUESTION OF FACT WHETHER THE ADDRESS AT WHICH SERVICE OF PROCESS WAS ATTEMPTED WAS DEFENDANT’S ACTUAL PLACE OF BUSINESS; AN AFFIDAVIT OF SERVICE MAY NOT BE AMENDED TO CURE AN ERRONEOUS ADDRESS (SECOND DEPT). 6

AMENDMENT OF BILL OF PARTICULARS. 7

PLAINTIFFS WERE ENTITLED TO AMEND THE BILL OF PARTICULARS TO THE EXTENT THE AMENDMENT AMPLIFIED THE ALLEGATIONS ALREADY MADE WITHOUT OBJECTION IN THE SUPPLEMENTAL BILL OF PARTICULARS (SECOND DEPT). 7
ATTORNEYS, FAILURE TO PROVIDE DISCOVERY, SANCTIONS. 7
A MONETARY PENALTY IMPOSED UPON PLAINTIFF’S ATTORNEY, AS OPPOSED TO DISMISSAL OF THE COMPLAINT, WAS THE APPROPRIATE SANCTION FOR PLAINTIFF’S FAILURE TO PROVIDE DISCOVERY (SECOND DEPT). 7

ATTORNEYS, CRIMINAL CONTEMPT. 8

PLAINTIFF’S COUNSEL SHOULD HAVE BEEN HELD IN CRIMINAL CONTEMPT FOR ISSUING SUBPOENAS IN DEFIANCE OF AN ORDER STAYING THE PROCEEDINGS; DIFFERENCE BETWEEN CIVIL AND CRIMINIAL CONTEMPT EXPLAINED (SECOND DEPT). 8

CHANGE OF VENUE, PROPER PROCEDURE. 10

WHEN A PARTY BRINGS A MOTION TO CHANGE VENUE IN THE COUNTY TO WHICH THE PARTY WANTS VENUE CHANGED, AS OPPOSED TO THE COUNTY WHERE THE ACTION WAS STARTED, THE PARTY MUST USE THE SPECIAL PROCEDURE IN CPLR 511 (A) AND (B), WHICH REQUIRES MAKING A DEMAND ON THE OTHER PARTY BEFORE BRINGING A MOTION; HERE THE SPECIAL PROCEDURE WAS NOT USED, THE MOTION TO CHANGE VENUE WAS MADE IN THE “WRONG COUNTY” AND SHOULD HAVE BEEN DISMISSED (SECOND DEPT). 10

CHILD VICTIMS ACT, NON-RESIDENT PLAINTIFF, STATUTE OF LIMIITATIONS, BORROWING STATUTE. 11

PLAINTIFF, A FLORIDA RESIDENT, ALLEGEDLY WAS ABUSED BY A PRIEST IN FLORIDA IN 1983 AND 1984; PLAINTIFF SUED THE DIOCESE OF BROOKLYN BECAUSE THE PRIEST WHO ALLEGEDLY ABUSED HIM WAS TRANSFERRED FROM BROOKLYN TO FLORIDA, ALLEGEDLY BECAUSE OF SEXUAL MISCONDUCT WITH CHILDREN; THE CHILD VICTIMS ACT DOES NOT APPLY TO THE NONRESIDENT PLAINTIFF AND THE BORROWING STATUTE DOES APPLY; THEREFORE FLORIDA’S FOUR-YEAR STATUTE OF LIMITATIONS RENDERED PLAINTIFF’S ACTION TIME-BARRED (SECOND DEPT). 11

COURT OF CLAIMS, LABOR LAW-CONSTRUCTION LAW, NOTICE OF CLAIM. 12

CLAIMANTS’ MOTION FOR LEAVE TO FILE AND SERVE A LATE NOTICE OF CLAIM IN THIS CONSTRUCTION-ACCIDENT CASE SHOULD HAVE BEEN GRANTED (SECOND DEPT). 12

CRIMINAL LAW, CIVIL DISCOVERY NOT PRECLUDED BY PARALLEL CRIMINAL INVESTIGATION. 13

SUPREME COURT PROPERLY REFUSED TO QUASH SUPBOENAS ISSUED BY THE OFFICE OF THE ATTORNEY GENERAL (OAG) TO THE TRUMP ORGANIZATION IN THE OAG’S FRAUD INVESTIGATION; THE FACT THAT THERE IS A RELATED CRIMINAL INVESTIGATION DOES NOT PRECLUDE CIVIL DISCOVERY (FIRST DEPT). 13

DISMISSAL WITHOUT PREJUDICE, BREACH OF FORUM SELECTION CLAUSE, ATTORNEY’S FEES. 14

A DISMISSAL WITHOUT PREJUDICE IS NOT A FINAL DETERMINATION ON THE MERITS AND IS NOT SUBJECT TO COLLATERAL ESTOPPEL; ATTORNEY’S FEES ARE APPROPRIATE DAMAGES IN AN ACTION FOR BREACH OF A FORUM SELECTION CLAUSE (FIRST DEPT). 14

ELECTION LAW, VERIFICATION OF PETITION. 15

THE VALIDATING PETITION SHOULD NOT HAVE BEEN DISMISSED ON THE GROUND THE PETITION WAS NOT VERIFIED; THE FAILURE TO RAISE THE OBJECTION WITH DUE DILIGENCE WAIVED IT; ALTHOUGH THE LANGUAGE IN THE PETITION WAS NOT EXACTLY THAT IN CPLR 3021, THE PETITION WAS IN FACT VERIFIED (SECOND DEPT). 15

EXPERT DISCLOSURE, TREATING PHYSICIAN, THIRD DEPARTMENT’S UNIQUE REQUIREMENTS. 16

CLAIMANT’S ATTORNEY WAS NOT AWARE OF THE THIRD DEPARTMENT’S UNIQUE REQUIREMENT OF FULL EXPERT-WITNESS DISCLOSURE FOR A TREATING PHYSICIAN; THAT WAS AN ADEQUATE EXCUSE FOR AN UNTIMELY DISCLOSURE (THIRD DEPT). 16

FAMILY LAW, DEFAULT, ATTORNEYS, APPEALS. 17

ALTHOUGH FATHER FAILED TO APPEAR, HIS COUNSEL APPEARED AND FATHER WAS THEREFORE NOT IN DEFAULT; BECAUSE FATHER WAS NOT IN DEFAULT, APPEAL IS NOT PRECLUDED (FOURTH DEPT). 17

FORECLOSURE, BANK’S STANDING. 18

TO CHALLENGE THE BANK’S STANDING TO FORECLOSE THE DEFENDANT MUST ASSERT THE LACK OF STANDING AS AN AFFIRMATIVE DEFENSE; MERELY DENYING THE RELEVANT ALLEGATIONS IN THE COMPLAINT IS NOT ENOUGH (SECOND DEPT). 18

FORECLOSURE, REAL PROPERTY ACTIONS AND PROCEEDINGS LAW (RPAPL), STATUTE OF LIMITATIONS, ONLY AN EXPLICIT ACKNOWLEDGMENT OF THE MORTGAGE DEBT WILL REVIVE AN EXPIRED STATUTE OF LIMITATIONS. 19

ONLY AN EXPRESS ACKNOWLEDEMENT OF THE MORTGAGE DEBT PURSUANT TO GENERAL OBLIGATIONS LAW 17-105 COULD REVIVE OR TOLL THE STATUTE OF LIMITATIONS IN THIS FORECLOSURE ACTION; THE REFERENCES TO THE MORTGAGE DEBT IN FINANCIAL STATEMENTS AND TAX RETURNS PROVIDED TO THE MORTGAGOR BY THE MORTGAGEE WERE NOT ENOUGH (CT APP). 19

GOOD FAITH EFFORT TO FILE AND SERVE OPPOSITION PAPERS. 20

PETITIONER DEMONSTRATED A GOOD FAITH EFFORT TO TIMELY FILE AND SERVE HIS OPPOSITION PAPERS AND DEMONSTRATED A POTENTIALLY MERITORIOUS CAUSE OF ACTION; SUPREME COURT HAD REFUSED TO CONSIDER THE OPPOSITION PAPERS BEFORE ISSUING ITS ORDER DISMISSING THE PETITION; THE ORDER SHOULD HAVE BEEN VACATED (SECOND DEPT). 20

JUDGES, SUA SPONTE DISMISSAL. 21

ABSENT “EXTRAORDINARY CIRCUMSTANCES,” A JUDGE DOES NOT HAVE THE AUTHORITY TO, SUA SPONTE, DISMISS A COMPLAINT (SECOND DEPT). 21

LIMITED LIABILITY COMPANY LAW, REAL PROPERTY LAW, DEFAULT, LIS PENDENS. 22

THE LLC’S FAILURE TO CHANGE THE ADDRESS ON FILE WITH THE SECRETARY OF STATE IS NOT A SUFFICIENT EXCUSE FOR A DEFAULT; PARTIES TO WHICH THE SUBJECT PROPERTY WAS TRANSFERRED AFTER THE LIS PENDENS WAS FILED ARE NOT NECESSARY PARTIES BECAUSE THEY ARE BOUND BY THE RESULT IN THIS ACTION (FIRST DEPT). 22

LONG-ARM JURISDICTION. 23

NEW YORK DID NOT HAVE LONG-ARM JURISDICTION OVER A BAVARIAN STEM DONOR REGISTRY INVOLVED IN DECEDENT’S PHYSICIANS’ SEARCH FOR A BONE-MARROW MATCH TO TREAT LEUKEMIA (FIRST DEPT). 23

LONG-ARM JURISDICTION. 24

PLAINTIFF, A TEXAS RESIDENT WHO WAS A FLIGHT ATTENDANT FOR 30 YEARS WITH MONTHLY STAY-OVERS IN NEW YORK, DEMONSTRATED NEW YORK HAD LONG-ARM JURISDICTION OVER THE NEW JERSEY COMPANY WHICH MANUFACTURED AND DISTRIBUTED TALCUM POWDER PLAINTIFF USED; THE TALCUM POWDER ALLEGEDLY CAUSED PLAINTIFF’S MESOTHELIOMA (FIRST DEPT). 24

MOTIONS TO RENEW, SUCCESSIVE SUMMARY JUDGMENT MOTIONS. 25

WHEN THE FAILURE TO PRESENT FACTS IN A PRIOR MOTION IS NOT JUSTIFIED, THE SECOND MOTION DOES NOT FIT THE CRITERIA FOR A MOTION TO RENEW OR AN ALLOWABLE SUCCESSIVE SUMMARY JUDGMENT MOTION (SECOND DEPT). 25

PLEADING, CONTRACT LAW, FRAUD, DUPLICATIVE CAUSES OF ACTION. 26

THE FRAUD CAUSE OF ACTION SHOULD NOT HAVE BEEN DISMISSED BECAUSE IT WAS NOT DUPLICATIVE OF THE BREACH OF CONTRACT CAUSE OF ACTION; CRITERIA EXPLAINED (FIRST DEPT). 26

PUNITIVE DAMAMGES, CONTRACT LAW, INSURANCE LAW. 27

PLAINTIFF’S CLAIM FOR PUNITIVE DAMAGES IN THIS BREACH OF AN INSURANCE CONTRACT ACTION SHOULD HAVE BEEN DISMISSED, CRITERIA EXPLAINED (SECOND DEPT). 27

REAL PROPERTY LAW, JOINT VENTURE, LIS PENDENS. 28

PLAINTIFF WAS SEEKING THE PROCEEDS OF A JOINT VENTURE, WHICH, UNDER PARTNERSHIP LAW, INVOLVES PERSONAL PROPERTY, NOT REAL PROPERTY; PLAINTIFF HAD NO INTEREST IN THE REAL PROPERTY WHICH WAS TO BE USED AS AN INN OPERATED AS A JOINT VENTURE; THERFORE THE LIS PENDENS FILED BY PLAINTIFF SHOULD HAVE BEEN CANCELLED (FOURTH DEPT). 28

RELATION-BACK DOCTRINE, STATUTE OF LIMITATIONS. 29

THE RELATION-BACK DOCTRINE DID NOT APPLY TO SAVE THE AMENDED PETITION CHALLENGING A USE VARIANCE; THE INTITIAL PETITION FAILED TO NAME A NECESSARY PARTY WHO WAS KNOWN TO THE PETITIONERS AND WAS DISMISSED ON THAT GROUND; THE AMENDED PEITITION, WHICH NAMED THE NECESSARY PARTY, WAS DISMISSED AS TIME-BARRED; BECAUSE THE PETITIONERS HAD NO DOUBT ABOUT WHO THE NECESSARY PARTY WAS AND HAD NAMED HER IN A PRIOR PETITION, THE RELATION-BACK DOCTRINE COULD NOT BE INVOKED (SECOND DEPT). 29

REPLIES, EVIDENCE FIRST PRESENTED IN REPLY, LABOR LAW-CONSTRUCTION LAW, WORKERS’ COMPENSATION. 31

PLAINTIFF’S SUMMARY JUDGMENT MOTION ON HIS LABOR LAW 241(6) CAUSE OF ACTION SHOULD HAVE BEEN DENIED BECAUSE IT WAS BASED ON EVIDENCE FIRST PRESENTED IN REPLY; PLAINTIFF WAS COLLATERALY ESTOPPED FROM CLAIMING TRAUMATIC BRAIN INJURY AND COGNITIVE DISORDER BY THE RULING IN HIS WORKERS’ COMPENSATION CASE (FIRST DEPT). 31

RES JUDICATA. 32

HERE THE DOCTRINE OF RES JUDICATA PRECLUDED PLAINTIFF’S FRAUDULENT CONVEYANCE ACTION; THE CAUSE OF ACTION COULD HAVE BEEN RAISED IN THE PRIOR ACTION WHICH WAS DISMISSED (FIRST DEPT). 32

SECURITIES, THE STRICT PLEADING REQUIREMENTS FOR FRAUD DO NOT APPLY TO VIOLATIONS OF SECURITIES ACT. 33

PLAINTIFFS STATED CAUSES OF ACTION FOR VIOLATIONS OF THE SECURITIES ACT BASED UPON ALLEGEDLY MISLEADING INFORMATION IN THE SECONDARY PUBLIC OFFERING (SPO) (FIRST DEPT). 33

SOVEREIGN IMMUNITY, NEGLIGENCE, TRAFFIC ACCIDENTS. 34

PLAINTIFF WAS STRUCK BY A NEW JERSEY TRANSIT CORP (NJT) BUS IN NEW YORK; NJT IS AN ARM OF THE STATE OF NEW JERSEY AND THE SOVEREIGN IMMUNITY DOCTRINE APPLIES; HOWEVER, UNDER NEW JERSEY LAW PLANTIFF CANNOT SUE IN NEW JERSEY BECAUSE THE CAUSE OF ACTION DID NOT ARISE THERE; APPLYING THE FORUM NON CONVENIENS DOCTRINE AS AN ANALYTICAL FRAMEWORK, PLAINTIFF’S NEW YORK LAWSUIT WAS ALLOWED TO GO FORWARD (FIRST DEPT). 34

UNTIMELY ANSWER AS NOTICE OF APPEARANCE. 35

DEFENDANT’S UNTIMELY ANSWER WAS REJECTED BY PLAINTIFF BUT PLAINTIFF DEEMED THE ANSWER TO BE A NOTICE OF APPEARANCE; DEFENDANT DID NOT OBJECT; AN APPEARANCE IS THE EQUIVALENT OF SERVICE OF A SUMMONS; THEREFORE DEFENDANT WAIVED THE LACK-OF-PERSONAL-JURISDICTION DEFENSE (SECOND DEPT). 35

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