Civil Procedure Update January February 2023

Civil Procedure Update January February 2023

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

Appropriate for Experienced Attorneys

Areas of Professional Practice: 1 CLE Credit Hour

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 in January February 2023 which address issues in “Civil Procedure.”

The “Civil Procedure” decision-summaries posted weekly on the New York Appellate Digest website are organized in monthly pamphlets which are accessed in the “Update Service.” The monthly pamphlets comprise the written materials for these CLE update courses. The links to the written materials for this course (“Civil Procedure Reversal Report January 2023” and “Civil Procedure Reversal Report February 2023” are provided below.

As you listen to the course, you will hear a verification code. After finishing the course, print and fill out the attached “Attorney Affirmation,” including the verification code, 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). 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 1 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 links below for the written materials (“Civil Procedure Reversal Report January 2023” and “Civil Procedure Reversal Report February 2023”), the “Attorney Affirmation” (the “verification code” form) and the “Evaluation Survey.”

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

Civil Procedure Reversal Report January 2023

Civil Procedure Reversal Report February 2023

Attorney Affirmation Civil Procedure Update January February 2023

Evaluation Survey Civil Procedure Update January February 2023

Topics Covered in the “Civil Procedure Update January February 2023” Course Are Described Below (the podcast may not address every case in the written materials); Page Numbers Refer to the Written Materials, i.e., the Pages in the “Civil Procedure Reversal Report January 2023” and “Civil Procedure Reversal Report February 2023”

 

JANUARY 2023 CIVIL PROCEDURE REVERSAL REPORT

AMEND COMPLAINT. 3

THE TEN-MONTH DELAY BEFORE SEEKING TO AMEND THE COMPLAINT AND DEFENDANT’S SPECULATIVE ALLEGATION OF PREJUDICE WERE NOT SUFFICIENT GROUNDS FOR DENYING THE MOTION TO AMEND (SECOND DEPT). 3

APPEALS, SUMMARY JUDGMENT, SEARCH THE RECORD. 4

THE SECOND DEPARTMENT SEARCHED THE RECORD AND AWARDED SUMMARY JUDGMENT TO A NONAPPEALING PARTY IN THIS SLIP AND FALL CASE (SECOND DEPT). 4

CORPORATION LAW, PIERCE-THE-CORPORATE-VEIL ALLEGATIONS INSUFFICIENT 5

THE ALLEGATIONS IN THE COMPLAINT WERE NOT SUFFICIENT TO SUPPORT LIABILITY ON A PIERCING-THE-CORPORATE-VEIL THEORY AND THE HOPE THAT DISCOVERY WOULD REVEAL SOMETHING WAS NOT A BASIS FOR DENIAL OF THE MOTION TO DISMISS (FIRST DEPT). 5

DISCOVERY DISPUTE, ATTORNEYS, AFFIRMATION OF GOOD FAITH, NEGLIGENCE. 6

PLAINTIFFS’ COUNSEL’S GOOD-FAITH AFFIRMATION DID NOT INCLUDE DETAILS OF ANY EFFORTS TO RESOLVE THE DISCOVERY ISSUE AND WAS THEREFORE INADEQUATE; PLAINTIFFS’ MOTION TO COMPEL DEFENDANT TO SUBMIT TO A DEPOSITION UNDER THREAT OF PRECLUSION SHOULD NOT HAVE BEEN GRANTED (SECOND DEPT). 6

EDUCATION-SCHOOL LAW, INFANCY TOLL, STATUTE OF LIMITATIONS, NEGLIGENCE. 7

THE ONE-YEAR-AND-NINETY-DAY TIME LIMIT FOR A SUIT AGAINST A SCHOOL DISTRICT IN GENERAL MUNICIPAL LAW 50-I(1)I IS SUBJECT TO THE INFANCY TOLL IN CPLR 208 (SECOND DEPT). 7

FORECLOSURE, MOTION TO RENEW. 8

IN THIS FORECLOSURE ACTION, THE BANK’S FAILURE TO EXPLAIN WHY AN AFFIDAVIT DEMONSTRATING THE NOTICE OF DEFAULT WAS PROPERLY MAILED WAS NOT SUBMITTED WITH THE INITIAL MOTION FOR SUMMARY JUDGMENT PRECLUDED A MOTION FOR LEAVE TO RENEW (SECOND DEPT). 8

JURISDICTION OVER FOREIGN ELECTRONIC-CIGARETTE MANUFACTURER, CONSUMER LAW. 9

NEW YORK HAS JURISDICTION OVER OUT-OF-STATE DEFENDANT JUUL LABS, THE MANUFACTURER OF ELECTRONIC CIGARETTES, AND TWO CORPORATE OFFICERS IN AN ACTION ALLEGING DECEPTIVE BUSINESS PRACTICES, FRAUD AND PUBLIC NUISANCE (FIRST DEPT). 9

JURISDICTION, TOXIC TORTS. 10

DEFENDANT MANUFACTURED VALVES CONTAINING ASBESTOS; ALTHOUGH DEFENDANT HAD A SMALL OFFICE IN NYC THE VALVES WERE MANUFACTURED AND SOLD IN CONNECTICUT, WHERE PLAINTIFF LIVED AND WORKED; THE RELATIONSHIP BETWEEN NEW YORK AND PLAINTIFF’S CLAIMS WAS NOT SUFFICIENT FOR NEW YORK JURISDICTION (FIRST DEPT). 10

MOTION TO DISMISS, DOCUMENTARY EVIDENCE. 11

THE EVIDENCE SUBMITTED IN SUPPORT OF THE MOTION TO DISMISS WAS NOT “DOCUMENTARY EVIDENCE” WITHIN THE MEANING OF CPLR 3211(A)(1); THE MOTION SHOULD NOT HAVE BEEN GRANTED (SECOND DEPT). 11

NEGLECT TO PROSECUTE, SIX-MONTH RECOMMENCEMENT OPTION (CPLR 205(A)). 12

TO DEPRIVE A PLAINTIFF OF THE SIX-MONTH RECOMMENCEMENT BENEFIT OF CPLR 205(A) THERE MUST HAVE BEEN A PATTERN OF NEGLECT, NOT, AS HERE, A SINGLE INSTANCE OF NEGLECT (PLAINTIFF WAS NOT READY FOR TRIAL); THERE WAS A DISSENT (FIRST DEPT). 12

PRODUCTS LIABILITY, JURISDICTION, FOREIGN CORPORATIONS. NEW YORK DID NOT HAVE LONG-ARM OR PERSONAL

JURISDICTION OVER THE ITALIAN MANUFACTURER OF A HOSE USED AS A COMPONENT IN A DISHWASHER MADE AND SOLD BY A NONPARTY (SECOND DEPT). 13

VENUE, CORPORATION LAW, NEGLIGENCE. 14

EVEN THOUGH THE DEFENDANT CORPORATION DID NOT HAVE AN OFFICE IN NEW YORK COUNTY AND THE TRAFFIC ACCIDENT OCCURRED IN NASSAU COUNTY WHERE THE CORPORATION DID HAVE AN OFFICE, VENUE WAS APPROPRIATELY PLACED IN NEW YORK COUNTY BASED ON DEFENDANT’S CERTIFICATE OF INCORPORATION (FIRST DEPT). 14

VERDICT SHEETS, JUROR CONFUSION. 15

NO ONE OBJECTED TO THE VERDICT SHEET BEFORE THE VERDICT AND JUROR AFFIDAVITS ALLEGING CONFUSION ARE NOT TO BE CONSIDERED EXCEPT IN EXTRAORDINARY CIRCUMSTANCES NOT PRESENT HERE; THE MOTION TO SET ASIDE THE VERDICT SHOULD NOT HAVE BEEN GRANTED (FIRST DEPT). 15

 

FEBRUARY 2023 CIVIL PROCEDURE REVERSAL REPORT

AMEND ANSWER, FORECLOSURE, JUDGES. 4

DEFENDANT IN THIS FORECLOSURE ACTION SHOULD HAVE BEEN ALLOWED TO AMEND THE ANSWER DESPITE THE FAILURE TO MAKE A PRE-ANSWER MOTION TO DISMISS; THE DEFENDANT GETS A SECOND CHANCE TO ADD AN AFFIRMATIVE DEFENSE IF THE COURT GRANT’S LEAVE TO AMEND (SECOND DEPT). 4

AMEND COMPLAINT, JOHN DOES, FORECLOSURE, TRUSTS AND ESTATES. 5

DEFENDANT WAS IMPROPERLY SUBSTITUTED AS A JOHN DOE IN THIS FORECLOSURE ACTION AND BECAUSE HE WAS SUED AS AN HEIR TO THE MORTGAGEE, AND NOT AS A REPRESENTATIVE OF THE MORTGAGEE’S ESTATE, THE ACTION WAS TIME BARRED (FOURTH DEPT). 5

AMEND COMPLAINT, JUDGES. 6

THE MOTION TO AMEND THE COMPLAINT SHOULD NOT HAVE BEEN DENIED ON THE GROUND THE PROPOSED CHANGES WERE NOT “REDLINED” (FIRST DEPT). 6

AMEND COMPLAINT, RELATION-BACK, MEDICAL MALPRACTICE, EMPLOYMENT LAW. 7

PLAINTIFF IN THIS MEDICAL MALPRACTICE ACTION SOUGHT TO ADD TWO PHYSICIAN’S ASSISTANTS (PA’S) AS DEFENDANTS AFTER THE STATUTE OF LIMITATIONS HAD RUN; PLAINTIFF DID NOT DEMONSTRATE THE DEFENDANT DOCTORS WERE THE PA’S EMPLOYERS OR SUPERVISORS; PLAINTIFF DID NOT DEMONSTRATE THE PA’S HAD TIMELY KNOWLEDGE OF THE ACTION; THEREFORE THE RELATION-BACK DOCTRINE SHOULD NOT HAVE BEEN APPLIED (SECOND DEPT). 7

ANSWER, UNTIMELY ANSWER. 8

IF PLAINTIFF DOES NOT REJECT AN UNTIMELY ANSWER SUBMITTED WITHOUT LEAVE OF COURT OR STIPULATION, OBJECTION TO THE ANSWER AS UNTIMELY IS WAIVED (SECOND DEPT). 8

APPEALS, FAMILY LAW, JUDGES. 8

THE JUDGE’S FAILURE TO MAKE FINDINGS OF FACT IN THIS CUSTODY CASE PRECLUDED APPELLATE REVIEW; MATTER REMITTED (FOURTH DEPT), 8

ARBITRATION, JUDGES, CONTRACT LAW. 9

THE JUDGE CANNOT, SUA SPONTE, DIRECT ARBITRATION WITHOUT A REQUEST FROM A PARTY; NON-SIGNATORIES TO AN AGREEMENT CONTAINING A FORUM SELECTION PROVISION MAY BE BOUND BY THE PROVISION IF THEY ARE SIGNATORIES TO A RELATED AGREEMENT (SECOND DEPT). 9

BORROWING STATUTE, FRAUD. 10

MATTER REMITTED FOR CONSIDERATION OF EXPERT EVIDENCE ABOUT WHICH ECUADORIAN STATUTE IS MOST CLOSELY ANALOGOUS TO NEW YORK’S FRAUDULENT-CONVEYANCE CRITERIA FOR PURPOSES OF NEW YORK’S BORROWING STATUTE; HERE THE ACTION ACCRUED IN ECUADOR; THE SHORTER OF THE APPLICABLE ECUADORIAN AND NEW YORK STATUTES OF LIMITATIONS WILL APPLY (FIRST DEPT). 10

CHILD VICTIMS ACT, CONSTITUTIONAL LAW, EDUCATION-SCHOOL LAW, NEGLIGENCE. 11

THE REVIVED STATUTE OF LIMITATIONS FOR LAWSUITS ALLEGING SEXUAL ABUSE PURSUANT TO THE CHILD VICTIMS ACT (CVA) DOES NOT VIOLATE DUE PROCESS (FOURTH DEPT). 11

CONSOLIDATE ACTIONS, STATUTE OF LIMITATIONS, FORECLOSURE, JUDGES. 12

WHERE ONE OF TWO RELATED FORECLOSURE ACTIONS IS SUBJECT TO A MERITORIOUS MOTION TO DISMISS AS TIME-BARRED, IT IS AN ABUSE OF DISCRETION TO GRANT A MOTION TO CONSOLIDATE THE TIME-BARRED ACTION WITH THE TIMELY ACTION (SECOND DEPT). 12

CONVERSION, BREACH OF CONTRACT TO ARTICLE 78, ADMINISTRATIVE LAW, PUBLIC HEALTH LAW. 13

A BREACH OF CONTRACT ACTION IS NOT PROPERLY CONVERTED TO AN ARTICLE 78 PROCEEDING; HERE THE PHYSICIAN SUED THE HOSPITAL FOR FAILING TO HONOR A CONTRACTUAL COMMITMENT TO ADMIT PLAINTIFF TO A RESIDENCY PROGRAM; THE PHYSICIAN’S ACTION WAS PRECLUDED FOR FAILURE TO EXHAUST THE ADMINISTRATIVE REMEDIES UNDER THE PUBLIC HEALTH LAW (SECOND DEPT). 13

CONVERSION, SPECIAL PROCEEDING TO PLENARY ACTION. 15

WHEN A COURT DECIDES AN ACTION BROUGHT AS A SPECIAL PROCEEDING SHOULD HAVE BEEN BROUGHT AS A PLENARY ACTION, THE ACTION SHOULD NOT BE DISMISSED BECAUSE IT WAS BROUGHT IN THE WRONG FORM; THE PETITION SOULD BE DEEMED A COMPLAINT, NOT A MOTION FOR SUMMARY JUDGMENT (FIRST DEPT). 15

CRIMINAL LAW, PROVING OUT-OF-STATE CONVICTION. 16

THE PEOPLE DID NOT HAVE THE DOCUMENT OFFERED TO PROVE DEFENDANT’S MASSACHUSETTS CONVICTION CERTIFIED PURSUANT TO CPLR 4540; SECOND FELONY OFFENDER SENTENCE VACATED (THIRD DEPT). 16

DEFAULT JUDGMENT, COMPLAINT. 17

A JUDGE HAS DISCRETION TO DENY A MOTION FOR A DEFAULT JUDGMENT ON THE GROUND THE CAUSE OF ACTION HAS NOT BEEN SHOWN TO BE VIABLE; HERE THE ALLEGATIONS IN THE COMPLAINT, WHICH ARE DEEMED ADMITTED, STATED A VIABLE CAUSE OF ACTION AND THE MOTION FOR A DEFAULT JUDGMENT SHOULD HAVE BEEN GRANTED (SECOND DEPT). 17

DEFAULT JUDGMENT, EVIDENCE, NEGLIGENCE. 18

THE ALLEGATIONS IN THE VERIFIED COMPLAINT IN THIS SLIP AND FALL CASE WERE SUFFICIENT TO SUPPORT PLAINTIFF’S MOTION FOR A DEFAULT JUDGMENT; THE DEFENDANT’S FAILURE TO ANSWER IS DEEMED TO BE AN ADMISSION TO THE ALLEGATIONS (FIRST DEPT). 18

DEPOSITIONS, INTERPRETERS, MEDICAL MALPRACTICE. 19

PLAINTIFF’S DAUGHTER SHOULD NOT HAVE BEEN APPOINTED TO SERVE AS THE INTERPRETER FOR HER MOTHER’S DEPOSITION IN THIS MEDICAL MALPRACTICE CASE; THE CRITERIA FOR ALLOWING A RELATIVE TO SERVE AS AN INTERPRETER ARE EXPLAINED (SECOND DEPT). 19

JURISDICTION, IN REM, REAL PROPERTY TAX LAW. 20

THE COUNTY HAD IN REM JURISDICTION IN THIS TAX FORECLOSURE PROCEEDING AND MADE ADEQUATE ATTEMPTS TO NOTIFY THE NECESSARY PARTIES (CT APP). 20

JURISDICTION, LONG-ARM, CONTRACT LAW. 21

NEW YORK HAS LONG-ARM JURISDICTION OVER THE MICHIGAN MANUFACTURER OF UNMANNED AERIAL VEHICLES (UAV’S) PURCHASED BY SUNY STONY BROOK FOR USE IN MADAGASCAR IN THIS BREACH OF CONTRACT ACTION (CT APP). 21

LANDLORD-TENANT, YELLOWSTONE INJUNCTION, CONTRACT LAW. 22

THE TENANT WAS NOT ENTITLED TO A YELLOWSTONE INJUNCTION BECAUSE THE RELIEF WAS SOUGHT AFTER THE DEADLINE IN THE NOTICE TO CURE; THAT DEADLINE WAS CONTROLLED BY THE LEASE AND THEREFORE WAS NOT EXTENDED BY THE COVID-RELATED EXECUTIVE ORDERS (SECOND DEPT). 22

LANDLORD-TENANT, YELLOWSTONE INJUNCTION. 23

THE TENANT MADE GOOD FAITH EFFORTS TO CURE THE DEFAULTS CITED BY THE LANDLORD AND WAS ENTITLED TO A YELLOWSTONE INJUNCTION TOLLING TENANT’S TIME TO CURE (FIRST DEPT). 23

LAW OFFICE FAILURE, MISSED DATE FOR SUBMISSIONS. 24

PLAINTIFF’S COUNSEL EXPLAINED THAT THE RETURN DATE FOR DEFENDANT’S SUMMARY JUDGMENT MOTION WAS MISCALEDARED AS THE DATE FOR SUBMISSION OF OPPOSITION PAPERS; IT WAS AN ABUSE OF DISCRETION TO DENY PLAINTIFF’S MOTION TO VACATE THE SUMMARY JUDGMENT ORDER (SECOND DEPT). 24

MOTION TO DISMISS, DOCUMENTARY EVIDENCE, REAL PROPERTY LAW. 25

IF PLAINTIFF MOVED FOR SUMMARY JUDGMENT IN THIS ACTION TO SET ASIDE A DEED PLAINTIFF WOULD HAVE HAD TO PROVE THE DEED WAS FORGED; TO WIN A MOTION TO DISMISS BASED ON DOCUMENTARY EVIDENCE, HOWEVER, THE DEFENDANT MUST UTTERLY REFUTE PLAINTIFF’S ALLEGATION THE DEED WAS FORGED WHICH DEFENDANT FAILED TO DO HERE (SECOND DEPT). 25

NOTICE OF CLAIM, PORT AUTHORITY, NEGLIGENCE. 26

IN THIS SLIP AND FALL ACTION AGAINST THE PORT AUTHORITY, THE APPLICABLE STATUTE PROVIDES THAT THE NOTICE OF CLAIM MUST BE SERVED AT LEAST 60 DAYS BEFORE THE COMMENCEMENT OF THE ACTION (NOT 60 DAYS AFTER THE ACCRUAL OF THE ACTION); THEREFORE THE NOTICE OF CLAIM WAS TIMELY SERVED (SECOND DEPT). 26

SERVICE OF PROCESS, EXTENSION OF TIME, FORECLOSURE, JUDGES. 28

AN “INTEREST OF JUSTICE” EXTENSION OF TIME TO SERVE A DEFENDANT HAS DIFFERENT CRITERIA THAN A “GOOD CAUSE” EXTENSION; CRITERIA EXPLAINED (SECOND DEPT). 28

STANDNG, FORECLOSURE, REAL PROPERTY ACTIONS AND PROCEEDINGS LAW (RPAPL), UNIFORM COMMERCIAL CODE. 29

THE BANK IN THIS FORECLOSURE ACTION DID NOT SUBMIT SUFFICIENT PROOF OF STANDING OR COMPLIANCE WITH THE NOTICE REQUIREMENTS OF RPAPL 1304 (SECOND DEPT). 29

TRIAL WITNESS TAKEN ILL, TESTIMONY STRUCK, DEPOSITION ADMITTED, JUDGES. 31

AFTER AN IMPORTANT PLAINTIFFS’ WITNESS BECAME ILL DURING CROSS-EXAMINATION AND WAS TAKEN BY AMBULANCE TO THE HOSPITAL, THE JUDGE, SUA SPONTE, DECLARED THE WITNESS UNAVAILABLE, STRUCK HIS TESTIMONY AND ADMITTED HIS DEPOSITION TESTIMONY; THERE WAS NO SUPPORT IN THE RECORD FOR THE FINDING THE WITNESS WOULD BE UNABLE TO TESTIFY; JUDGMENT REVERSED (SECOND DEPT). 31

VENUE, UNTIMELY MOTION TO CHANGE. 32

THE MOTION TO CHANGE VENUE WAS MADE MORE THAN 15 DAYS AFTER THE DEMAND TO CHANGE VENUE; THE 15-DAY TIME-LIMIT IS STRICTLY ENFORCED AND THE MOTION SHOULD HAVE BEEN DENIED (FIRST DEPT). 32