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NEW YORK DID NOT HAVE JURISDICTION OVER DEFENDANT IN THIS SUIT SEEKING PAYMENT OF A PROMISSORY NOTE, DEFENDANT HAD NO CONNECTION WITH NEW YORK OTHER THAN A NEW YORK AGENT OVER WHICH DEFENDANT EXERCISED NO CONTROL AND A NEW YORK CHOICE OF LAW PROVISION IN THE SUBSCRIPTION AGREEMENT.

In a lengthy opinion by Justice Austin, too detailed to be fairly summarized here, the Second Department determined a New York agent (Kraft) which acted on the investors’, including defendant’s, behalf, but over which the defendant exercised no control, and a subscription agreement with a New York choice of law provision were insufficient, under the facts, to confer jurisdiction of New York courts over the lawsuit. The lawsuit sought payment on a note which was related to defendant’s investment in an oil and gas joint venture (AIV). Defendant resided in Illinois, the note was executed in Illinois, and defendant did not transact any business in New York:

Here, the defendant did not personally transact business in New York, and the complaint does not contain any allegations that he did so … . After the defendant executed the Subscription Agreement and the note in Illinois, the only acts connecting him to New York with respect to his investment in AIV were sending one letter in December 1997 to representatives of AIV and engaging in a telephone conversation with representatives of AIV … . Moreover, no meetings were held in New York between the defendant and the plaintiffs … . Even though CPLR 302(a) is a single-act statute, contrary to the plaintiffs’ contention, the defendant’s act of appointing Kraft, a corporation that maintains its principal office in New York, as his attorney-in-fact upon investing in the joint venture is not sufficient to invoke jurisdiction. * * *

Accepting the plaintiffs’ assertions that Kraft executed business orders and drilling and operating agreements and collected and distributed monies on the defendant’s behalf in New York State, and that knowledge of and consent to Kraft’s actions were established by the Subscription Agreement, which appointed Kraft as his attorney-in-fact with regard to these transactions, the defendant’s lack of control undermines a finding of an agency relationship. America/International 1994 Venture v Mau, 2016 NY Slip Op 07915, 2nd Dept 11-23-16

 

CIVIL PROCEDURE (NEW YORK DID NOT HAVE JURISDICTION OVER DEFENDANT IN THIS SUIT SEEKING PAYMENT OF A PROMISSORY NOTE, DEFENDANT HAD NO CONNECTION WITH NEW YORK OTHER THAN A NEW YORK AGENT OVER WHICH DEFENDANT EXERCISED NO CONTROL AND A NEW YORK CHOICE OF LAW PROVISION IN THE SUBSCRIPTION AGREEMENT)/JURISDICTION (LONG-ARM, NEW YORK DID NOT HAVE JURISDICTION OVER DEFENDANT IN THIS SUIT SEEKING PAYMENT OF A PROMISSORY NOTE, DEFENDANT HAD NO CONNECTION WITH NEW YORK OTHER THAN A NEW YORK AGENT OVER WHICH DEFENDANT EXERCISED NO CONTROL AND A NEW YORK CHOICE OF LAW PROVISION IN THE SUBSCRIPTION AGREEMENT)/LONG-ARM JURISDICTION (NEW YORK DID NOT HAVE JURISDICTION OVER DEFENDANT IN THIS SUIT SEEKING PAYMENT OF A PROMISSORY NOTE, DEFENDANT HAD NO CONNECTION WITH NEW YORK OTHER THAN A NEW YORK AGENT OVER WHICH DEFENDANT EXERCISED NO CONTROL AND A NEW YORK CHOICE OF LAW PROVISION IN THE SUBSCRIPTION AGREEMENT)

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MOTION FOR LEAVE TO FILE LATE NOTICE OF CLAIM SHOULD HAVE BEEN GRANTED, DEFENDANT HAD ALREADY CONDUCTED A 50-h HEARING AND THEREFORE HAD NOTICE OF THE ESSENTIAL FACTS WITHIN ONE MONTH OF THE EXPIRATION OF THE 90-DAY TIME LIMIT.

The Second Department determined plaintiff’s motion to serve a late notice of claim should have been granted. The plaintiff served a notice of claim 30 days after the 90-day time limit expired, but defendant NYC Health and Hospitals Corporation conducted a 50-h hearing. After serving the summons and complaint, the plaintiff moved for leave to file a late notice of claim:

General Municipal Law § 50-e(5) permits a court to extend the time to serve a notice of claim. In determining whether to grant such an extension, the court must consider various factors, of which the ” most important'” is “whether the public corporation acquired actual notice of the essential facts constituting the claim within 90 days of the accrual of the claim or within a reasonable time thereafter” … .

Under the circumstances of this case, in which the defendant received a late notice of claim less than one month after the expiration of the 90-day period, which it accepted and with respect to which it conducted an examination pursuant to General Municipal Law § 50-h, the defendant acquired actual knowledge of the essential facts underlying the claim within a reasonable time after the expiration of the 90-day period … . Brunson v New York City Health & Hosps. Corp., 2016 NY Slip Op 07618, 2nd Dept 11-16-16

 

MUNICIPAL LAW (MOTION FOR LEAVE TO FILE LATE NOTICE OF CLAIM SHOULD HAVE BEEN GRANTED, DEFENDANT HAD ALREADY CONDUCTED A 50-h HEARING AND THEREFORE HAD NOTICE OF THE ESSENTIAL FACTS WITHIN ONE MONTH OF THE EXPIRATION OF THE 90-DAY TIME LIMIT)/NOTICE OF CLAIM (MOTION FOR LEAVE TO FILE LATE NOTICE OF CLAIM SHOULD HAVE BEEN GRANTED, DEFENDANT HAD ALREADY CONDUCTED A 50-h HEARING AND THEREFORE HAD NOTICE OF THE ESSENTIAL FACTS WITHIN ONE MONTH OF THE EXPIRATION OF THE 90-DAY TIME LIMIT)/NEGLIGENCE (MUNICIPAL LAW, MOTION FOR LEAVE TO FILE LATE NOTICE OF CLAIM SHOULD HAVE BEEN GRANTED, DEFENDANT HAD ALREADY CONDUCTED A 50-h HEARING AND THEREFORE HAD NOTICE OF THE ESSENTIAL FACTS WITHIN ONE MONTH OF THE EXPIRATION OF THE 90-DAY TIME LIMIT)/MEDICAL MALPRACTICE (MUNICIPAL LAW, MOTION FOR LEAVE TO FILE LATE NOTICE OF CLAIM SHOULD HAVE BEEN GRANTED, DEFENDANT HAD ALREADY CONDUCTED A 50-h HEARING AND THEREFORE HAD NOTICE OF THE ESSENTIAL FACTS WITHIN ONE MONTH OF THE EXPIRATION OF THE 90-DAY TIME LIMIT)

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COUNTY DID NOT DEMONSTRATE THE NEED FOR A LEFT TURN SIGNAL HAD BEEN STUDIED, THEREFORE THE COUNTY WAS NOT ENTITLED TO SUMMARY JUDGMENT ON IMMUNITY GROUNDS.

The Second Department determined the county’s motion for summary judgment was properly denied in this intersection car accident case. Plaintiff alleged the county was negligent in failing to install a traffic control device with a left turn signal, because there was a designated lane for a left turn. The accident occurred when plaintiff attempted to make a left turn. Because the county did not demonstrate the issue had been adequately studied, it did not demonstrate government immunity applied. Therefore the county’s motion was properly denied without need to address the opposing papers:

A governmental entity has a duty to the public to keep its streets in a reasonably safe condition … . “While this duty is nondelegable, it is measured by the courts with consideration given to the proper limits on intrusion into the [government’s] planning and decision-making functions. Thus, in the field of traffic design engineering, the State is accorded a qualified immunity from liability arising out of a highway planning decision” … . Under the doctrine of qualified immunity, a governmental entity may not be held liable for a highway safety planning decision unless its study of a traffic condition is plainly inadequate, or there is no reasonable basis for its traffic plan … . Immunity will apply only “where a duly authorized public planning body has entertained and passed on the very same question of risk as would ordinarily go to the jury” … .

Here, the County failed to establish that the design of the subject traffic signal, including the determination that no left-turn signal was warranted, was based on a study which entertained and passed on the very same question of risk that the plaintiff would put to a jury … . Warren v Evans, 2016 NY Slip Op 07641, 2nd Dept 11-16-16

 

MUNICIPAL LAW (COUNTY DID NOT DEMONSTRATE THE NEED FOR A LEFT TURN SIGNAL HAD BEEN STUDIED, THEREFORE THE COUNTY WAS NOT ENTITLED TO SUMMARY JUDGMENT ON IMMUNITY GROUNDS)/IMMUNITY (HIGHWAYS, COUNTY DID NOT DEMONSTRATE THE NEED FOR A LEFT TURN SIGNAL HAD BEEN STUDIED, THEREFORE THE COUNTY WAS NOT ENTITLED TO SUMMARY JUDGMENT ON IMMUNITY GROUNDS)/NEGLIGENCE (MUNICIPAL LAW, HIGHWAYS, COUNTY DID NOT DEMONSTRATE THE NEED FOR A LEFT TURN SIGNAL HAD BEEN STUDIED, THEREFORE THE COUNTY WAS NOT ENTITLED TO SUMMARY JUDGMENT ON IMMUNITY GROUNDS)/HIGHWAYS (COUNTY DID NOT DEMONSTRATE THE NEED FOR A LEFT TURN SIGNAL HAD BEEN STUDIED, THEREFORE THE COUNTY WAS NOT ENTITLED TO SUMMARY JUDGMENT ON IMMUNITY GROUNDS)

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MAKESHIFT TABLE SAW, MADE FROM A PORTABLE SAW, SUBJECT TO INDUSTRIAL CODE PROVISION REQUIRING GUARDS ON TABLE SAWS, UNTIMELY SUMMARY JUDGMENT MOTION BASED ON GROUNDS IDENTICAL TO A TIMELY MOTION BROUGHT BY ANOTHER PARTY SHOULD BE CONSIDERED.

The Second Department determined plaintiff’s Labor Law 241 (6) cause of action should not have been dismissed. Although the specific Industrial Code regulation relied upon by plaintiff was not identified in the pleadings no prejudice resulted from any delay in identifying it. Plaintiff’s thumb was severed using a makeshift table saw consisting of a circular saw attached to the bottom of a table. Supreme Court held the Industrial Code regulation requiring a guard on a table saw did not apply to a portable saw. However, the portable saw was being used as a table saw, thus the regulation applied. The Second Department also noted that an otherwise untimely motion or cross motion for summary judgment should be considered if the issues raised are identical to a timely summary judgment motion made by another party. Here portions of the untimely motion were identical to the timely motion, but other portions were not. The identical portions should have been considered:

12 NYCRR 23-1.12(c)(2) requires that “[e]very power-driven saw, other than a portable saw, . . . be equipped with a guard which covers the saw blade to such an extent as will prevent contact with the teeth.” The Supreme Court incorrectly concluded that this provision was inapplicable to the facts of this case because it applies to table saws, not portable saws. “[W]hen determining the applicability of a regulation,” the court must “take into consideration the function of a piece of equipment, and not merely the name” … . The circular saw at issue was being used as a table saw at the time of the plaintiff’s accident, and, thus, the same safety precautions as are required for other power-driven table saws are applicable … . Accordingly, the branch of [defendant’s] motion which was for summary judgment dismissing the Labor Law § 241(6) cause of action insofar as asserted against him should have been denied. …

Although [defendant’s] cross motion was untimely, an untimely motion or cross motion for summary judgment may be considered by the court where a timely motion for summary judgment was made on nearly identical grounds … . The branch of [defendant’s] cross motion which was for summary judgment dismissing the Labor Law § 200 and common-law negligence causes of action insofar as asserted against it was not made on grounds nearly identical to the similar branch of [the] timely motion, since it rested on the separate factual assertion that it did not exercise supervisory control over the work. Sheng Hai Tong v K & K 7619, Inc., 2016 NY Slip Op 07637, 2nd Dept 11-16-16

LABOR LAW-CONSTRUCTION LAW (MAKESHIFT TABLE SAW, MADE FROM A PORTABLE SAW, SUBJECT TO INDUSTRIAL CODE PROVISION REQUIRING GUARDS ON TABLE SAWS)/CIVIL PROCEDURE (UNTIMELY SUMMARY JUDGMENT MOTION BASED ON GROUNDS IDENTICAL TO A TIMELY MOTION BROUGHT BY ANOTHER PARTY SHOULD BE CONSIDERED)/SUMMARY JUDGMENT, MOTIONS FOR (UNTIMELY SUMMARY JUDGMENT MOTION BASED ON GROUNDS IDENTICAL TO A TIMELY MOTION BROUGHT BY ANOTHER PARTY SHOULD BE CONSIDERED)/TABLE SAWS (LABOR LAW, MAKESHIFT TABLE SAW, MADE FROM A PORTABLE SAW, SUBJECT TO INDUSTRIAL CODE PROVISION REQUIRING GUARDS ON TABLE SAWS)

FALL FROM A SCAFFOLD DID NOT WARRANT SUMMARY JUDGMENT ON PLAINTIFF’S LABOR LAW 240 (1) CAUSE OF ACTION, PLAINTIFF DID NOT DEMONSTRATE THE FAILURE TO PROVIDE PROPER PROTECTION.

The Second Department determined summary judgment should not have been granted to plaintiff on his Labor Law 240 (1) cause of action. Plaintiff fell from a scaffold but his papers did not make out a prima facie case:

To establish liability pursuant to Labor Law § 240(1), a plaintiff must show that the statute was violated, and that the violation was a proximate cause of his or her injuries … . The mere fact that a plaintiff fell from a scaffold ” does not establish, in and of itself, that proper protection was not provided, and the issue of whether a particular safety device provided proper protection is generally a question of fact for the jury'” … . Here, the plaintiff’s own submissions demonstrated the existence of triable issues of fact as to how the accident occurred and it cannot be concluded, as a matter of law, that the alleged failure to provide him with protection proximately caused his injuries … . Karwowski v Grolier Club of City of N.Y., 2016 NY Slip Op 07625, 2nd Dept 11-16-16

LABOR LAW-CONSTRUCTION LAW (FALL FROM A SCAFFOLD DID NOT WARRANT SUMMARY JUDGMENT ON PLAINTIFF’S LABOR LAW 240 (1) CAUSE OF ACTION, PLAINTIFF DID NOT DEMONSTRATE THE FAILURE TO PROVIDE PROPER PROTECTION)/SCAFFOLDS (FALL FROM A SCAFFOLD DID NOT WARRANT SUMMARY JUDGMENT ON PLAINTIFF’S LABOR LAW 240 (1) CAUSE OF ACTION, PLAINTIFF DID NOT DEMONSTRATE THE FAILURE TO PROVIDE PROPER PROTECTION)

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FAMILY COURT SHOULD NOT HAVE APPLIED THE DOCTRINE OF COLLATERAL ESTOPPEL TO DENY A PETITION TO VACATE AN ACKNOWLEDGMENT OF PATERNITY.

Under the unique facts, the Second Department determined Family Court should not have applied the doctrine of collateral estoppel to prohibit Omar from contesting paternity. Omar had signed an acknowledgment of paternity two days after the child was born. However, twice thereafter Omar filed petitions to vacate his acknowledgment supported by DNA tests:

Family Court should have declined to apply the doctrine of collateral estoppel. ” Collateral estoppel, an equitable doctrine, is based upon the general notion that a party, or one in privity with a party, should not be permitted to relitigate an issue decided against it'” … . “[W]hether to apply collateral estoppel in a particular case depends upon general notions of fairness involving a practical inquiry into the realities of the litigation'” … . The doctrine is highly flexible in nature, and should not be rigidly or mechanically applied, even where its technical requirements are met … . “[T]he fundamental inquiry is whether relitigation should be permitted in a particular case in light of what are often competing policy considerations, including fairness to the parties, conservation of the resources of the court and the litigants, and the societal interests in consistent and accurate results. No rigid rules are possible, because even these factors may vary in relative importance depending on the nature of the proceedings” … .

Here, the nature of the proceedings is highly relevant, as it involves the determination of the paternity of a child not yet seven years of age. Although Omar executed an acknowledgment of paternity two days after the subject child’s birth in November 2009, he obtained, in 2011, a private DNA test indicating that he could not be the father. In 2013, the mother consented to the vacatur of the acknowledgment of paternity based upon the results of a second DNA test. Moreover, at a 2014 court appearance, the mother advised the Support Magistrate, in contrast to statements she made in connection with Omar’s first petition, that she was involved in an ongoing sexual relationship with Britton at the time of the child’s conception. Under these circumstances, there is potential merit to Omar’s second petition … . It is also significant to note that neither Omar nor the mother was represented by counsel in connection with Omar’s first petition … , and that Omar was still unrepresented when the Support Magistrate instructed him to file a second petition after he unsuccessfully attempted to restore the first petition.

Taking into consideration the particular facts of this case, we are persuaded that application of the doctrine of collateral estoppel would not promote fairness to the parties. Matter of Kaori (Omar J.–Shalette S.), 2016 NY Slip Op 07649, 2nd Dept 11-16-16

 

FAMILY LAW (PATERNITY, FAMILY COURT SHOULD NOT HAVE APPLIED THE DOCTRINE OF COLLATERAL ESTOPPEL TO DENY A PETITION TO VACATE AN ACKNOWLEDGMENT OF PATERNITY)/PATERNITY (FAMILY COURT SHOULD NOT HAVE APPLIED THE DOCTRINE OF COLLATERAL ESTOPPEL TO DENY A PETITION TO VACATE AN ACKNOWLEDGMENT OF PATERNITY)/COLLATERAL ESTOPPEL (FAMILY LAW, PATERNITY, FAMILY COURT SHOULD NOT HAVE APPLIED THE DOCTRINE OF COLLATERAL ESTOPPEL TO DENY A PETITION TO VACATE AN ACKNOWLEDGMENT OF PATERNITY)

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COURT SHOULD NOT HAVE DISMISSED INDICTMENT ON GROUND NOT RAISED BY THE DEFENDANT WITHOUT GIVING THE PEOPLE THE OPPORTUNITY TO ADDRESS IT, EVIDENCE BEFORE THE GRAND JURY DID NOT SUPPORT THE AGENCY DEFENSE.

The Second Department determined County Court should not have dismissed the indictment upon reading the grand jury minutes, on a ground not raised by the defendant, without giving the People the opportunity to address it. County Court found that the evidence presented to the grand jury warranted the agency-defense instruction, which was not given:

The County Court erred in dismissing the indictment based upon a specific defect in the grand jury proceedings not raised by the defendant, without affording the People notice of the specific defect and an opportunity to respond (see CPL 210.45[1]…). Contrary to the defendant’s contention, the People did not waive their right to notice and an opportunity to be heard by failing to move to reargue the court’s order … . Furthermore, upon our review of the record, we find that no reasonable view of the evidence presented to the grand jury warrants an instruction on the defense of agency … . The defendant’s actions were consistent with that of a “steerer,” and not a mere extension of the buyer … . In addition, because the defendant did not testify before the grand jury, no evidence was presented indicating that he did not stand to profit from the sale or that he had no independent desire to promote the transaction … . People v Cruz, 2016 NY Slip Op 07673, 2nd Dept 11-16-16

CRIMINAL LAW (COURT SHOULD NOT HAVE DISMISSED INDICTMENT ON GROUND NOT RAISED BY THE DEFENDANT WITHOUT GIVING THE PEOPLE THE OPPORTUNITY TO ADDRESS IT, EVIDENCE BEFORE THE GRAND JURY DID NOT SUPPORT THE AGENCY DEFENSE)/EVIDENCE (CRIMINAL LAW, AGENCY DEFENSE, COURT SHOULD NOT HAVE DISMISSED INDICTMENT ON GROUND NOT RAISED BY THE DEFENDANT WITHOUT GIVING THE PEOPLE THE OPPORTUNITY TO ADDRESS IT, EVIDENCE BEFORE THE GRAND JURY DID NOT SUPPORT THE AGENCY DEFENSE)/GRAND JURY (COURT SHOULD NOT HAVE DISMISSED INDICTMENT ON GROUND NOT RAISED BY THE DEFENDANT WITHOUT GIVING THE PEOPLE THE OPPORTUNITY TO ADDRESS IT, EVIDENCE BEFORE THE GRAND JURY DID NOT SUPPORT THE AGENCY DEFENSE)/AGENCY DEFENSE (CRIMINAL LAW, COURT SHOULD NOT HAVE DISMISSED INDICTMENT ON GROUND NOT RAISED BY THE DEFENDANT WITHOUT GIVING THE PEOPLE THE OPPORTUNITY TO ADDRESS IT, EVIDENCE BEFORE THE GRAND JURY DID NOT SUPPORT THE AGENCY DEFENSE)

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QUESTIONING OF DEFENDANT, WHO WAS REPRESENTED ON ANOTHER CHARGE, VIOLATED DEFENDANT’S RIGHT TO COUNSEL, STATEMENTS SHOULD HAVE BEEN SUPPRESSED.

The Second Department determined defendant’s statements in connection with a murder charge were made in violation of his right to counsel. A new trial was ordered. At the time defendant was questioned about a robbery and a murder (the “gas station shooting”), he was represented on a marijuana charge. The robbery and murder occurred at different times and places, but defendant allegedly was the getaway driver for both. The trial court ruled the statements related to the robbery were made in violation of defendant’s right to counsel but the statements related to the murder were admissible. The Second Department noted that it is statutorily prohibited from revisiting the trial court’s suppression of the robbery statements. Since the Second Department concluded that the robbery and murder interrogations were necessarily intertwined, the murder statements should have been suppressed:

The Court of Appeals has recognized two categories of cases in which the attachment of counsel on one crime may preclude the police from interrogating a suspect on the subject of another crime. In People v Cohen (90 NY2d 632), the Court of Appeals stated that “where the two criminal matters are so closely related transactionally, or in space or time, that questioning on the unrepresented matter would all but inevitably elicit incriminating responses regarding the matter in which there had been an entry of counsel[,] . . . interrogation on the unrepresented crime is prohibited even in the absence of direct questioning regarding the crime on which counsel had appeared” … . With respect to the second category, the Court of Appeals has stated that “a statement may be subject to suppression where impermissible questioning on a represented charge was, when viewed as an integrated whole, not fairly separable from otherwise permissible questioning on the unrepresented matter and was, in fact, purposely exploited to aid in securing inculpatory admissions on the [unrepresented matter]” … . * * *

In light of the determination that the defendant’s right to counsel was violated when he was questioned with regard to the robbery charges, we further find that his right to counsel was violated by questioning on the factually interwoven homicide matter. Indeed, the robbery and the murder cases were so closely related that questioning about the gas station shooting “would all but inevitably elicit incriminating responses regarding” the robbery … . People v Henry, 2016 NY Slip Op 07676, 2nd Dept 11-16-16

 

CRIMINAL LAW (QUESTIONING OF DEFENDANT, WHO WAS REPRESENTED ON ANOTHER CHARGE, VIOLATED DEFENDANT’S RIGHT TO COUNSEL, STATEMENTS SHOULD HAVE BEEN SUPPRESSED)/ATTORNEYS (CRIMINAL LAW, QUESTIONING OF DEFENDANT, WHO WAS REPRESENTED ON ANOTHER CHARGE, VIOLATED DEFENDANT’S RIGHT TO COUNSEL, STATEMENTS SHOULD HAVE BEEN SUPPRESSED)/EVIDENCE (CRIMINAL LAW, QUESTIONING OF DEFENDANT, WHO WAS REPRESENTED ON ANOTHER CHARGE, VIOLATED DEFENDANT’S RIGHT TO COUNSEL, STATEMENTS SHOULD HAVE BEEN SUPPRESSED)/SUPPRESSION (CRIMINAL LAW, QUESTIONING OF DEFENDANT, WHO WAS REPRESENTED ON ANOTHER CHARGE, VIOLATED DEFENDANT’S RIGHT TO COUNSEL, STATEMENTS SHOULD HAVE BEEN SUPPRESSED)/RIGHT TO COUNSEL (CRIMINAL LAW, QUESTIONING OF DEFENDANT, WHO WAS REPRESENTED ON ANOTHER CHARGE, VIOLATED DEFENDANT’S RIGHT TO COUNSEL, STATEMENTS SHOULD HAVE BEEN SUPPRESSED)

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CONTRACTUALLY SHORTENED STATUTE OF LIMITATIONS ENFORCED.

The Second Department determined a shortened statute of limitations agreed to in a stock purchase contract was properly enforced. Plaintiff discovered that defendant had not paid the full purchase price for the stock, and brought a breach of contract action after the contractual statute of limitations had expired:

“Parties to a contract may agree to limit the period of time within which an action must be commenced to a period shorter than that provided by the applicable statute of limitations” … . To be enforceable, such provision must be clear and unambiguous … . “Whether or not a writing is ambiguous is a question of law to be resolved by the courts” … . ” Absent proof that the contract is one of adhesion or the product of overreaching, or that [the] altered period is unreasonably short, the abbreviated period of limitation will be enforced'” … . …

Contrary to the plaintiff’s contention, the plain language of the provision limiting the time period to bring an “action based on any warranty, covenant or representation contained in this Agreement” is clear and unambiguous, and applies to the defendant’s covenant to pay … . This interpretation is consistent with the plain meaning of the contract and basic principles of contract construction that an interpretation which renders language in the contract superfluous cannot be supported … . Batales v Friedman, 2016 NY Slip Op 07615, 2nd Dept 11-16-16

 

CONTRACT LAW (CONTRACTUALLY SHORTENED STATUTE OF LIMITATIONS ENFORCED)/CIVIL PROCEDURE (CONTRACTUALLY SHORTENED STATUTE OF LIMITATIONS ENFORCED)/STATUTE OF LIMITATIONS (CONTRACTUALLY SHORTENED STATUTE OF LIMITATIONS ENFORCED)

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FAILURE TO FILE PROOF OF SERVICE IS A CORRECTABLE DEFECT, PETITION SHOULD NOT HAVE BEEN DENIED ON THAT GROUND.

The Second Department determined failure to file proof of service of a petition and notice of petition should not have resulted in the denial of the petition. The motion court raised the ground for denial itself. Rather than denying the petition, the motion court should have alerted the parties to the defect and allowed it to be cured:

“The failure to file proof of service is a procedural irregularity, not a jurisdictional defect, that may be cured by motion or sua sponte by the court in its discretion pursuant to CPLR 2004” … . Here, there is no dispute that the respondents were served with the notice of petition and petition, as they moved to dismiss on the ground that the petition failed to state a cause of action. At no time did they argue that the proceeding should be dismissed for failure to file proof of service. As such, the parties did not have an opportunity to address the purported failure to file proof of service, the ground upon which the Supreme Court relied in denying the petition and dismissing the proceeding, even though such defect is readily curable (see CPLR 2001, 2004). “The lack of notice and opportunity to be heard implicates the fundamental issue of fairness that is the cornerstone of due process” … . Therefore, the Supreme Court should have alerted the parties to the purported defect and afforded the appellant an opportunity to correct it, rather than denying the petition and dismissing the proceeding… . Matter of Meighan v Ponte, 2016 NY Slip Op 07653, 2nd Dept 11-16-16

CIVIL PROCEDURE (FAILURE TO FILE PROOF OF SERVICE IS A CORRECTABLE DEFECT, PETITION SHOULD NOT HAVE BEEN DENIED ON THAT GROUND)/SERVICE, PROOF OF (FAILURE TO FILE PROOF OF SERVICE IS A CORRECTABLE DEFECT, PETITION SHOULD NOT HAVE BEEN DENIED ON THAT GROUND)

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