Bayne v City of New York, 137 AD3d 428 [1st Dept., 2016]

If a would-be tort plaintiff against a municipality has failed to file a notice of claim, a proceeding for leave to file late notice may be necessary. This case points up a potential pitfall: If the would-be plaintiff waits until actually obtaining leave before filing the summons and complaint, he may have less time left than he thinks. However much time was left in the limitations period at the time the proceeding was commenced will be as much time as is left after it is granted. The pendency of the proceeding tolls the running of the limitations period, it does not extend it or start it anew.

“Assuming, without deciding, that the statute of limitations was tolled during the pendency of plaintiff’s petition (see Giblin v Nassau County Med. Ctr., 61 NY2d 67, 72-74 [1984]; CPLR 204[a]), it began running anew on September 13, 2013, when Supreme Court granted plaintiff leave to serve a late notice of claim (Doddy v City of New York, 45 AD3d 431, 432 [1st Dept 2007]). Accordingly, plaintiff was required to commence an action against the City within 13 days, on or before September 26, 2013, which he failed to do (id.). The order granting plaintiff leave to serve a late notice of claim within 30 days of the order could not extend the statute of limitations (see Baez v New York City Health & Hosps. Corp., 80 NY2d 571, 577 [1992]; Ahnor v City of New York, 101 AD3d 581, 582 [1st Dept 2012]). Plaintiff could have filed a complaint within the limitations period, or even before receiving leave to serve a late notice of claim (see Ahnor, 101 AD3d at 582; see also Matter of Shannon v Westchester County Health Care Corp., 76 AD3d 680, 682 [2d Dept 2010]; General Municipal Law § 50-e[5]).”


The language of the opinion “assuming, without deciding” may give the impression that whether there is a toll is an open question. It is not: there is a toll from the commencement of the proceeding until the order granting it “goes into effect.”[1] The Second Department said, in Ambrus v City of New York,

“The Court of Appeals has long recognized that CPLR 204(a) tolls the one-year and 90–day statute of limitations governing tort claims against municipal defendants while a motion to serve a late notice of claim is pending. The toll has been held to run from the date an application for leave to serve a late notice of claim is made to the date upon which an order granting that relief goes into effect.”[2]

What does that last phrase mean? A prudent practitioner would not wait until the order is served on him or her with notice of entry. Rather, the period seems to resume when the order granting the petition is entered. Where the remaining time is only a matter of days, prudence dictates watching the court records like a hawk.[3]

Is it permissible to commence the action without having first obtained leave to file the late notice of claim? It is mechanically possible to file a summons and complaint, but does it comply with proper procedure? After all, such a complaint could not legitimately allege that a notice of claim has been timely filed. Note that in Barchet v NYCTA the Court of Appeals noted that GML § 50-e requires that the application for leave be made before commencement of an action, and that the would-be plaintiff is prohibited from commencing the action until leave to file is obtained.[4] On the other hand, the Second Department’s language quoted above gives explicit sanction to commencing the action before leave is obtained.[5]

[1] Barchet v. New York City Tr. Auth., 20 N.Y.2d 1; Giblin v Nassau County Med. Ctr., 61 NY2d 67, 72 [1984]; Ambrus v City of New York, 87 AD3d 341[2d Dept 2011]

[2] Ambrus v City of New York, 87 AD3d 341, 342 [2d Dept 2011]

[3] See, Ahnor v City of New York, 101 AD3d 581 [1st Dept 2012], where the court explicitly states that the toll ends at the entry of the order.

[4] 20 N.Y.2d at p. 6

[5] Accord, Ahnor v City of New York, 101 AD3d 581 [1st Dept 2012]

For the Fourth, Read the Declaration – Out Loud. Many years ago, we began reading the Declaration of Independence aloud on the Fourth of July, and it became a family tradition. I cannot recommend it highly enough. Remembering the Declaration of Independence is, after all, the point of the entire exercise. Even acknowledging its weaknesses of racism and sexism, it remains the aspirational core of the American project. Of particular importance to our profession, note how many of the grievances against the King are directed to attacks on judicial independence. Most of all, for those of us who have not actually read the text since high school (if ever), reading it now will remind us that the case for Independence had to be made first of all to our own people. I don’t know how that case could have been made better than it was here.

IN CONGRESS, July 4, 1776. The unanimous Declaration of the thirteen united States of America,

When in the Course of human events, it becomes necessary for one people to dissolve the political bands which have connected them with another, and to assume among the powers of the earth, the separate and equal station to which the Laws of Nature and of Nature’s God entitle them, a decent respect to the opinions of mankind requires that they should declare the causes which impel them to the separation.

We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness.–That to secure these rights, Governments are instituted among Men, deriving their just powers from the consent of the governed, –That whenever any Form of Government becomes destructive of these ends, it is the Right of the People to alter or to abolish it, and to institute new Government, laying its foundation on such principles and organizing its powers in such form, as to them shall seem most likely to effect their Safety and Happiness. Prudence, indeed, will dictate that Governments long established should not be changed for light and transient causes; and accordingly all experience hath shewn, that mankind are more disposed to suffer, while evils are sufferable, than to right themselves by abolishing the forms to which they are accustomed. But when a long train of abuses and usurpations, pursuing invariably the same Object evinces a design to reduce them under absolute Despotism, it is their right, it is their duty, to throw off such Government, and to provide new Guards for their future security.–Such has been the patient sufferance of these Colonies; and such is now the necessity which constrains them to alter their former Systems of Government. The history of the present King of Great Britain is a history of repeated injuries and usurpations, all having in direct object the establishment of an absolute Tyranny over these States. To prove this, let Facts be submitted to a candid world.

He has refused his Assent to Laws, the most wholesome and necessary for the public good. He has forbidden his Governors to pass Laws of immediate and pressing importance, unless suspended in their operation till his Assent should be obtained; and when so suspended, he has utterly neglected to attend to them. He has refused to pass other Laws for the accommodation of large districts of people, unless those people would relinquish the right of Representation in the Legislature, a right inestimable to them and formidable to tyrants only. He has called together legislative bodies at places unusual, uncomfortable, and distant from the depository of their public Records, for the sole purpose of fatiguing them into compliance with his measures. He has dissolved Representative Houses repeatedly, for opposing with manly firmness his invasions on the rights of the people. He has refused for a long time, after such dissolutions, to cause others to be elected; whereby the Legislative powers, incapable of Annihilation, have returned to the People at large for their exercise; the State remaining in the mean time exposed to all the dangers of invasion from without, and convulsions within. He has endeavoured to prevent the population of these States; for that purpose obstructing the Laws for Naturalization of Foreigners; refusing to pass others to encourage their migrations hither, and raising the conditions of new Appropriations of Lands. He has obstructed the Administration of Justice, by refusing his Assent to Laws for establishing Judiciary powers. He has made Judges dependent on his Will alone, for the tenure of their offices, and the amount and payment of their salaries. He has erected a multitude of New Offices, and sent hither swarms of Officers to harrass our people, and eat out their substance. He has kept among us, in times of peace, Standing Armies without the Consent of our legislatures. He has affected to render the Military independent of and superior to the Civil power. He has combined with others to subject us to a jurisdiction foreign to our constitution, and unacknowledged by our laws; giving his Assent to their Acts of pretended Legislation: For Quartering large bodies of armed troops among us: For protecting them, by a mock Trial, from punishment for any Murders which they should commit on the Inhabitants of these States: For cutting off our Trade with all parts of the world: For imposing Taxes on us without our Consent: For depriving us in many cases, of the benefits of Trial by Jury: For transporting us beyond Seas to be tried for pretended offences For abolishing the free System of English Laws in a neighbouring Province, establishing therein an Arbitrary government, and enlarging its Boundaries so as to render it at once an example and fit instrument for introducing the same absolute rule into these Colonies: For taking away our Charters, abolishing our most valuable Laws, and altering fundamentally the Forms of our Governments: For suspending our own Legislatures, and declaring themselves invested with power to legislate for us in all cases whatsoever. He has abdicated Government here, by declaring us out of his Protection and waging War against us. He has plundered our seas, ravaged our Coasts, burnt our towns, and destroyed the lives of our people. He is at this time transporting large Armies of foreign Mercenaries to compleat the works of death, desolation and tyranny, already begun with circumstances of Cruelty & perfidy scarcely paralleled in the most barbarous ages, and totally unworthy the Head of a civilized nation. He has constrained our fellow Citizens taken Captive on the high Seas to bear Arms against their Country, to become the executioners of their friends and Brethren, or to fall themselves by their Hands. He has excited domestic insurrections amongst us, and has endeavoured to bring on the inhabitants of our frontiers, the merciless Indian Savages, whose known rule of warfare, is an undistinguished destruction of all ages, sexes and conditions.

In every stage of these Oppressions We have Petitioned for Redress in the most humble terms: Our repeated Petitions have been answered only by repeated injury. A Prince whose character is thus marked by every act which may define a Tyrant, is unfit to be the ruler of a free people. Nor have We been wanting in attentions to our Brittish brethren. We have warned them from time to time of attempts by their legislature to extend an unwarrantable jurisdiction over us. We have reminded them of the circumstances of our emigration and settlement here. We have appealed to their native justice and magnanimity, and we have conjured them by the ties of our common kindred to disavow these usurpations, which, would inevitably interrupt our connections and correspondence. They too have been deaf to the voice of justice and of consanguinity. We must, therefore, acquiesce in the necessity, which denounces our Separation, and hold them, as we hold the rest of mankind, Enemies in War, in Peace Friends. We, therefore, the Representatives of the united States of America, in General Congress, Assembled, appealing to the Supreme Judge of the world for the rectitude of our intentions, do, in the Name, and by Authority of the good People of these Colonies, solemnly publish and declare, That these United Colonies are, and of Right ought to be Free and Independent States; that they are Absolved from all Allegiance to the British Crown, and that all political connection between them and the State of Great Britain, is and ought to be totally dissolved; and that as Free and Independent States, they have full Power to levy War, conclude Peace, contract Alliances, establish Commerce, and to do all other Acts and Things which Independent States may of right do. And for the support of this Declaration, with a firm reliance on the protection of divine Providence, we mutually pledge to each other our Lives, our Fortunes and our sacred Honor.

The 56 signatures on the Declaration appear in the positions indicated: Column 1 Georgia: Button Gwinnett Lyman Hall George Walton Column 2 North Carolina: William Hooper Joseph Hewes John Penn South Carolina: Edward Rutledge Thomas Heyward, Jr. Thomas Lynch, Jr. Arthur Middleton Column 3 Massachusetts: John Hancock Maryland: Samuel Chase William Paca Thomas Stone Charles Carroll of Carrollton Virginia: George Wythe Richard Henry Lee Thomas Jefferson Benjamin Harrison Thomas Nelson, Jr. Francis Lightfoot Lee Carter Braxton Column 4 Pennsylvania: Robert Morris Benjamin Rush Benjamin Franklin John Morton George Clymer James Smith George Taylor James Wilson George Ross Delaware: Caesar Rodney George Read Thomas McKean Column 5 New York: William Floyd Philip Livingston Francis Lewis Lewis Morris New Jersey: Richard Stockton John Witherspoon Francis Hopkinson John Hart Abraham Clark Column 6 New Hampshire: Josiah Bartlett William Whipple Massachusetts: Samuel Adams John Adams Robert Treat Paine Elbridge Gerry Rhode Island: Stephen Hopkins William Ellery Connecticut: Roger Sherman Samuel Huntington William Williams Oliver Wolcott New Hampshire: Matthew Thornton

Matter of Tonawanda Seneca Nation v Noonan,___ NY3d___, 2016 NY Slip Op 04974 [2016]

The ultimate issue here will be a challenge to Surrogate Noonan’s jurisdiction to determine disputes over tribal lands arising from the probate of the will of  a tribal member. That will have to await another day, however, since the Seneca Nation commenced their Article 78 proceeding in the Appellate Division and not the Supreme Court. The Court of Appeals held here that an Article 78 against a Surrogate must be commenced in the Supreme Court, even where the Surrogate in question also wears a County Court robe. Accordingly, the Appellate Division lacked jurisdiction over the proceeding and properly dismissed it.

Supreme Court is, of course, the appropriate forum for most Article 78s. Even where the case involves issues that must ultimately be determined by the Appellate Division, the proceeding should normally begin in Supreme, which will effect the transfer itself after determining the issues within its jurisdiction. (CPLR 7804[g])

Among the limited class of cases which should begin directly in the Appellate Division are those against Supreme and County Court judges. (CPLR 506[b][1]) As to Supreme Court Justices, the reason for this is evident: a Supreme Court Justice should not be placed in the position of passing on the actions of another Justice. As to County Court judges, the reason is murkier, but as explained by the Court of Appeals the legislative history shows a reluctance to have a Supreme Court Justice, with primarily civil jurisdiction, review the actions of a County Court Judge, whose jurisdiction is primarily criminal.

In any event, notably absent from the list of proceedings directly commenced in the Appellate Division are those against Judges of the Surrogate’s Court. Surrogate Noonan also sits as a Judge of the County Court, but that doesn’t matter. Venue for the Article 78 against a multi-robe judge depends on the robe he or she was wearing when the challenged action was taken, and here that means Judge Noonan was wearing his Surrogate’s Court robe. Venue was in the Supreme Court, and the Appellate Division properly dismissed the proceeding.

Parenthetically, may I note that I find this justification incomprehensible. Most of my experience has been with the Supreme Court in Queens County, where Supreme Court Justices exercise both civil and criminal jurisdiction, and are in fact transferred from Civil to Criminal Terms and back, at the will of the court administrators. There is no County Court. A Supreme Court Justice is assumed to be capable of applying the totality of the law, whether or not there is also a County Court in the Justice’s home county. Why shouldn’t a Supreme Court Justice be fully capable of passing on the actions of a County Court Judge? They are not, after all, judges of the same Court. If the difficulty is to be found in the coordinate jurisdiction of the Supreme Court and the County Court, Supreme Court and the Surrogate’s Court likewise have coordinate jurisdiction. I have noted elsewhere my dismay at the pointlessly fractured nature of our supposedly Unified Court System and the unnecessary procedural issues it engenders, and here is another instance of it.

CRP/Extell Parcel I, L.P. v Cuomo, ___ NY3d___, 2016 NY Slip Op 04251 [2016]

The Court of Appeals issued a short decision here about a court’s lack of authority to entertain a post-judgment motion for statutory interest. Before universalizing it and jumping to the conclusion that the courts’ general authority to amend an erroneous or incomplete judgment has somehow been restricted, it is important to realize is that this was an Article 78 proceeding, and its specific and unusual procedural situation renders the decision of limited scope.

Petitioner was the sponsor of a condominium in Manhattan, and filed an offering plan with the respondent Attorney General requiring the purchasers’ down payments to be placed in escrow. If the first closing did not take place by September 1, 2008, the purchasers were entitled to their down payments back, with accumulated interest.

The first closing did not take place by September 1, 2008, and the purchasers demanded the return of their down payments, but the Petitioner refused, arguing that the 2008 date was a scrivener’s error. The correct date, it argued, was September 1, 2009. The purchasers applied to the Attorney General, who held in their favor and directed the return of the down payments with accumulated interest.

That order was the subject of this Article 78 proceeding. Supreme Court denied the petition, directed the return of the down payments with accumulated interest (that is, with the interest earned by the escrow fund, saying nothing about interest at the statutory rate under CPLR 5001), and dismissed the proceeding. The Appellate Division affirmed.

While that appeal was pending, the purchasers moved for the imposition of interest at the statutory rate, and it is that motion which concerns us now. Supreme Court granted the motion and entered a judgment for $4.9 million in interest. The Appellate Division reversed, holding that once the Attorney General’s order had been upheld and the proceeding dismissed, all issues had been resolved and Supreme Court was without jurisdiction to address the question of interest. Additionally, it held that CPLR 5001 did not apply, and the purchasers would not have been entitled to pre-judgment interest anyway, since the offering plan was not a contract.

The Court of Appeals affirmed, holding simply that the order dismissing the proceeding was a final judgment, and Supreme Court was thereafter without jurisdiction to entertain the Post-judgment motion for interest. It did not address the issue of whether interest would have been appropriate had the purchasers moved for it prior the the entry of the order.

The Court’s lack of elaboration of its holding might lead some to conclude that it applies to all situations. It should not be inferred from this decision that a court never has jurisdiction to amend a judgment after it has been entered. The key is that the Court cited to CPLR 7806 and not a more general section such as CPLR 5016. This decision should be regarded as applying to its specific fact pattern and context in an Article 78 proceeding where the issues directly presented by the petition had been resolved by the order.

Wesco Ins. Co. v Vinson, 137 A.D.3d 1114, 26 N.Y.S.3d 870 [2d Dept., 2016]

All this has happened before, and no doubt it will all happen again, but the error is so basic that it bears repeated comment.

A motion can exist only in the context of an action or special proceeding. It follows that before a motion can be made, the initiatory papers for an action or proceeding must be filed. That means a summons and complaint or summons with notice (for an action) or a petition (for a special proceeding). Without them, there is no action or special proceeding. Even if the court signs an order to show cause in the non-existent action, it lacks subject-matter jurisdiction and the order to show cause and any resulting orders are nullities.

Here, an insurance company moved to fix a Worker’s Compensation lien. It obtained an index number (and paid the fee), and filed a proposed Order to Show Cause on the motion, which the court signed and eventually decided. The missing step was that the insurer never filed or served a summons, complaint or petition.

The failure to file is a non-waivable, jurisdictional defect. It means that the court’s jurisdiction was never invoked, and the entire proceeding was a nullity.

Note, particularly, that CPLR 2001 is no help to the insurer. That allows mistakes or irregularities in the commencement to be corrected, but only if the initiatory papers were in fact filed. Where, to take the most common example, they are filed under the wrong index number CPLR 2001 will allow correction of the error by the purchase of a new index number (and payment of the fee). Here, by contrast, the initiatory papers were never filed at all. Or, in Dealy-Doe-Eyes Maddux v Schur, where the pro se plaintiff filed a complaint but no summons, the defect went to subject-matter jurisdiction and could not be corrected.

We saw this just last year, in O’Brien v Contreras. There, too, the purported plaintiff meant to obtain an order (to modify the terms of an agreement), and so obtained an order to show cause without first filing a summons or complaint. The OSC did not commence an  action or proceeding, and so the court lacked subject-matter jurisdiction.

Contrast these with another of last year’s cases, Heath v Normile, where a summons with notice was filed, but only a naked summons was served. Since the action had been properly commenced, the defect went to personal jurisdiction only, not subject matter jurisdiction. While the chain of events took some untangling, the court’s jurisdiction had been properly invoked and the errors could all be corrected. Defendant had demanded a complaint, which plaintiff had not served, and defendant then moved to dismiss for failure to serve a complaint. The service of the naked summons having been a nullity, the demand for a complaint was premature and dismissal on that ground was not available. The time to serve the summons with notice had expired, and the plaintiff clearly had not acted diligently, but the interests of justice allowed an extension of time to serve.

Red Zone LLC v Cadwalader, Wickersham & Taft, LLP, ___ NY3d ___, 2016 NY Slip Op 04249

When we reported on this legal malpractice case in 2015, the Appellate Division had invalidated the limitations defense as a matter of law. The Court of Appeals has now found factual issues that require a trial of the defense.

In 2005, Cadwalader had drafted an agreement with one of Red Zone’s advisers which was supposed to cap fees at $2 million, but proved ineffective. The litigation between Red Zone and the adviser, in which Cadwalader consulted but did not actually represent Red Zone, played out over a period of years, including a period from 2005 to 2007 in which there was no contact between them at all. The Appellate Division found a continuous course of representation notwithstanding the gap between contacts.

The point we made at the time was that the lapse of time between contacts, by itself, did not rule out continuous representation where the relationship itself continued. The Appellate Division concluded that there had simply been nothing to talk about during that time.

The Court of Appeals held to the contrary, finding that the “significant gap in time” was one of several factors indicating that Red Zone had not sustained its burden on summary judgment of showing that the limitations defense was meritless as a matter of law. That is, the gap doesn’t rule out the application of the continuous representation doctrine, but it provides an obstacle that cannot be leaped over without specific proof.

Friends of Thayer Lake v Brown, ___ NY3d ___, 2016 NY Slip Op 03647 [2016]

We looked at this case last year, when the Appellate Division allowed the parties to chart their own procedural course to summary judgment. The Court of Appeals has now held that summary judgment is simply not available where the proof reveals factual issues, whether or not the parties ask for it.

The issue was whether a certain waterway in Hamilton County is navigable-in-fact, a determination which bears significantly on the property rights of the adjacent landowners. The parties moved and cross-moved for summary judgment, and the proof was such that the trial court stated its inclination to view the ultimate determination as one of fact, to deny the motions and leave the matter for trial. The parties, both before the trial court and in the Appellate Division, noted that despite an extensive record the essential facts were not in dispute and asked the court to issue a determination as a matter of law.

Noting the general principle that the parties may chart their own procedural course, the Appellate Division held that under the circumstances it was appropriate to accede to the parties’ request and determine the dispute as a matter of law.

The Court of Appeals has now “modi-versed,” that is, it has denied the motion that the Appellate Division granted, couching the determination in terms of a modification rather than an outright reversal. In so doing, it made two larger points.

First, the parties’ ability to “chart their own procedural course” has limits. Where, as here, the course they attempt to follow runs directly contrary to established procedures, they may not necessarily ask the court to come with them.

The second, related, point, is that a party moving for summary judgment must always show its entitlement to judgment as a matter of law, and that there are no material issues of fact. Where factual issues exist, summary judgment is simply the wrong vehicle, and must be denied.

Here, the parties’ submissions clearly raised conflicting factual claims in a case which is highly fact-specific. This, despite their claim that the facts were not in dispute. While a stipulated statement of facts is not required, the conflicting evidence means that neither party has shown its entitlement to judgment as a matter of law, and the dueling summary judgment motions should all have been denied. One may ask why, if the facts were not in dispute, the parties could not arrive at a stipulated set of facts.

To the extent that the parties could not agree on stipulated facts, and did not want to go to the expense of a long trial, an alternative resolution does present itself: The parties could stipulate to the admissibility of all of the conflicting evidence, and stipulate that it would constitute the trial record. The court could then entertain arguments as to the weight and effect of the evidence, and resolve factual issues accordingly. The problem with this approach, of course, is that the plaintiff still has to sustain that pesky burden of proof, and a tie still goes to the defendant. If the conflicting evidence is not resolved in plaintiff’s favor, the verdict must be against it, and to the extent that this is a declaratory judgment action, the declaration must be in defendant’s favor.

Schoenefeld v Schneiderman, ___ F3d ___, 2016 WL 1612845

Predictions are difficult, especially about the future. Much to my surprise, Judiciary Law 470, requiring non-resident attorneys to maintain a physical office in New York in order to practice here, has survived a constitutional challenge.

A year ago, I posted about the Court of Appeals determination in this case, construing Judiciary Law § 470 as meaning what it says: a non-resident attorney must maintain a physical office in New York in order to practice here. The Court had responded to a certified question from the Second Circuit, seeking to know whether the plaintiff’s constitutional challenge to § 470 could be avoided by an alternative reading. It seemed at the time that the Court of Appeals’ construction of the statute made the challenge unavoidable, and that it must inevitably fall afoul of the Privileges and Immunities Clause of the US Constitution.

Indeed, my comment at the time was

The tenor of the opinion is that the Court recognized that Judiciary Law § 470 cannot be sustained under the Privileges and Immunities Clause, and that it was unwilling to rewrite it in order to save it. That the Second Circuit will invalidate it seems a foregone conclusion.

Well, right and wrong. The challenge was indeed unavoidable, but the statute has survived.

The challenge came in federal court from a New Jersey attorney, duly admitted in New York and in compliance with all other requirements, who wished to practice in New York but not to open a second office here. She observed, correctly, that a New York attorney has no need for a formal office but can work from home.

The District Court found that the statute unduly burdened the rights of non-resident attorneys, without a corresponding justification in a state interest. In the Second Circuit, the State argued that the statute aimed only at ensuring that the attorney was amenable to the service of process, and could be satisfied by the designation of an agent for the service of process or even the maintenance of a post office box. Existing New York case law, unfortunately, did not support that interpretation.

Before considering the constitutionality of the statute, the Second Circuit wanted to be sure that the more lenient view of the statute’s requirements was not available and that the constitutional challenge could not be avoided. It therefore certified the question of what the minimum requirements for compliance were. The New York Court of Appeals rejected the alternate interpretations, holding that a physical office within the state is required in order to facilitate the service of process on attorneys.

The stage seemed set for a the Second Circuit to invalidate the statute as violative of the Privileges and Immunities Clause. The court found that there was no “protectionist purpose” behind the statute, favoring New York attorneys, but only the neutral purpose of providing a means of service of process on all attorneys. In fact, the court noted, it was the plaintiff who was seeking to be treated differently from New York resident attorneys. In so ruling, it had the benefit of the recent SCOTUS decision of McBurney v Young, 133 S.Ct. 1709. While not establishing a new rule of law, McBurney clarified that the privileges and immunities clause is violated only when the questionable law was enacted for a protectionist purpose. Contrast that with the Commerce Clause, which “regulates effects, not motives,” rendering irrelevant an inquiry into the reasons for enacting a statute with a discriminatory effect. (Schoenefeld had asserted Equal Protection and Commerce Clause claims, but they had been dismissed by the District Court and not appealed by her.)

There was a dissent, which regarded the majority’s approach as erroneously placing the burden of proving discriminatory intent on the plaintiff, instead of requiring the state to justify the discriminatory statute.

In honor of National Poem In Your Pocket Day:

THE laws of God, the laws of man,

He may keep that will and can;

Not I: let God and man decree

Laws for themselves and not for me;

And if my ways are not as theirs

Let them mind their own affairs.

Their deeds I judge and much condemn,

Yet when did I make laws for them?

Please yourselves, say I , and they

Need only look the other way.

But no, they will not; they must still

Wrest their neighbour to their will,

And make me dance as they desire

With jail and gallows and hell-fire.

And how am I to face the odds

Of man’s bedevilment and God’s?

I, a stranger and afraid

In a world I never made.

They will be master, right or wrong;

Though both are foolish, both are strong.

And since, my soul, we cannot fly

To Saturn nor to Mercury,

Keep we must, if keep we can,

These foreign laws of God and man.

A.E. Housman

Matter of People ex rel. Schneiderman v Trump Entrepreneur Initiative. LLC, ___ AD 3d ___, 2016 NY Slip Op 01430 [1st Dept., 2016]

Let’s resist the impulse to snarkiness, and stick to the legal issues. Yes, this is the one involving serious allegations of fraud against Donald Trump in one of his business ventures. The proceeding was commenced in August, 2013, well before Trump became an actual, and now a leading, presidential candidate, and so any claim of a political witch-hunt must go by the board. A detailed rundown of the Attorney General’s allegations is unnecessary for our discussion, and in any event has been done better than I could by Eric Turkewitz on his NY Personal Injury Blog.

Whether those claims can be substantiated is not the issue here. The actual issue here, once the nature of the action is properly understood, is in fact a rather simple limitations question of which period governs: When the Attorney General sues over a fraud, under the authority of Executive Law § 63(12), does the claim involve a “liability, penalty or forfeiture created or imposed by statute” (CPLR 213 (2), 3-year period), or one of the six-year periods of CPLR 214? This is resolved by well-established principles, as will be seen.

As a threshold matter, however, the Appellate Division reconsidered one of its recent precedents, found it to be erroneous, and overruled it. We’ll look at that aspect of the case first, and then look directly at the limitations issue.

All we need know of the petition is that the Attorney General alleged numerous fraudulent and improper practices against Donald Trump individually and several of his namesake business entities. The fraud allegations were framed in separate causes of action: first under the Attorney General’s statutory authority pursuant to Executive Law § 63(12), and as common-law fraud. Common-law fraud, of course, carries a six-year limitations period, and there is no issue as to the timeliness of those claims.

The issues concern the Executive Law cause of action. First, whether it is properly pleaded as an independent cause of action, and assuming that it is, whether it carries a limitations period different from the common-law fraud claims.

Supreme Court dismissed the cause of action, finding on constraint of the Appellate Division decision in People v Charles Schwab & Co., Inc., 109 AD3d 445 [1st Dept., 2013] that it may not be pleaded as an independent cause of action. We must start, therefore, with the language of Executive Law § 63(12), which states:

“12. Whenever any person shall engage in repeated fraudulent or illegal acts or otherwise demonstrate persistent fraud or illegality in the carrying on, conducting or transaction of business, the attorney general may apply . . . for an order enjoining the continuance of such business activity or of any fraudulent or illegal acts, directing restitution and damages . . . and the court may award the relief applied for or so much thereof as it may deem proper. The word “fraud” or “fraudulent” as used herein shall include any device, scheme or artifice to defraud and any deception, misrepresentation, concealment, suppression, false pretense, false promise or unconscionable contractual provisions.”

In State v Cortelle, 38 N.Y.2d 83 [1975], the Attorney General sought to enjoin the respondents from a scheme of obtaining title to distressed real property under false pretenses, and to dissolve the corporate entities through which they acted. The issue was the same as ultimately arose in Trump, whether the cause of action was one “created or imposed by statute,” subject to a three-year limitations period under CPLR 214(2), or whether it was subject to the six-year catch-all provision of CPLR 213. The Court of Appeals found that the State’s right to enjoin such conduct and to dissolve the corporate entities extended back to the common-law. That it had since been codified by statute did not mean that it was “created or imposed” by statute. CPLR 214(2) therefore did not apply, and the applicable period was the six-year catch-all.

The Court’s opinion includes this language:

“The [Executive Law and BCL] did not ‘make’ unlawful the alleged fraudulent practices, but only provided standing in the Attorney-General to seek redress and additional remedies for recognized wrongs which pre-existed the statutes. Statutory provisions which provide only additional remedies or standing do not create or impose new obligations. . . .That the statutes authorizing the Attorney-General to bring this action appear to be or are new to the law is not dispositive. As applied to the allegations in this case, they create no new claims but only provide particular remedies and standing in a public officer to seek redress on behalf of the State and others. Moreover, the kind of wrong the Attorney-General seeks to redress is not a new one to the decisional law but a now rather old and common type of fraud.” State v Cortelle Corp., 38 NY2d 83, 85-86 [1975]

This said nothing about whether the Attorney General could bring an independent Executive Law claim, but concerned only whether the specific claim had been “created or imposed” by the Executive Law.

In the 2013 Charles Schwab decision, the First Department considered claims of securities fraud brought by the Attorney General, including a cause of action under Executive Law § 63(12). The First Department dismissed the Executive Law cause of action, citing Cortelle for the proposition that the Executive Law “does not create independent claims”. Cortelle, as we have seen, does not support that proposition.

Of course, just because an independent Executive Law § 63(12) cause of action isn’t precluded by Cortelle doesn’t mean that it is viable. The viability of such a cause is shown by other Appellate Division cases, which have allowed for independent fraud claims under § 63(12), including at least one holding that the language of the statute requires proof of neither scienter nor reliance, further supporting the conclusion that the Attorney General is not limited to common-law fraud claims. (People v American Motor Club, 179 AD2d 277, 283 [1st Dept., 1992], app. dism. 80 NY2d 893 [1992]; see also People v Greenberg, 95 A.D.3d 474, 483 [1st Dept., 2012], aff’d 21 N.Y.3d 439 [2013])

The First Department thus concluded that the decision in Charles Schwab had been based on a misreading of Cortelle, and was erroneous. Seeing no reason to allow the error to languish in the law, furnishing precedent for further erroneous decisions, the First Department overruled it. The Attorney General may, indeed, claim allege independent fraud causes of action under both the Executive Law and common-law fraud.

Finally addressing the limitations issue directly, the First Department found that the rationale of Cortelle was controlling. That is, Executive Law § 63(12) neither creates nor imposes a new liability or penalty for fraudulent conduct, but simply gives the Attorney General standing to sue. The claim is therefore not subject to the three-year period of CPLR 214(2), but rather to the six-year residual period of CPLR 213(1). The first cause of action was therefore timely.

A similar situation arose in 2014, in regard to the attorney-deceit statute, Judiciary Law §487. In Melcher v Greenberg Traurig, the Court of Appeals held that while the roots of this claim originated in the First Statute of Westminster (in 1275!) the claim entered New York law as part of our common law, at the creation of the country in 1776, when both English statutory and common law were adopted by common consent. Thus, what appears to be a statutory cause of action really isn’t, and the three-year period doesn’t control. As with the Executive Law cause of action in Trump, the controlling period is the six-year residual period.