Monthly Archives: January 2015

The Legislature has acted to amend CPLR 3216 so as to eliminate the indiscriminate and arbitrary imposition of CPLR 3216 90-day notices by the courts, and the administrative dismissals which frequently followed. CPLR 3216 (a) is amended to provide that any court initiative or motion must be upon notice to the parties. CPLR 3216 (b), which lists the preconditions to dismissal, is amended in two respects. As to time, paragraph (b) (2) now provides that at least one year since the joinder of issue or six months since the preliminary conference order must have elapsed, whichever is later. Most importantly, paragraph (b)(3) now provides that where it is the court that serves a 90-day notice, the notice must
“set forth the specific conduct constituting the neglect, which conduct shall demonstrate a general pattern of delay in proceeding with the litigation.” Read More

People ex rel. Nonhuman Rights Project, Inc. v Lavery , ___ AD3d ___, ___ NYS2d ___, 2014 NY Slip Op 08531 [3rd Dept., 2014]

The newspapers have recently reported that an Argentinian court has extended the right to habeas corpus relief to an orangutan.
Here the Third Department rejected a similar petition to extend habeas corpus rights to a chimpanzee named Tommy, but gave it serious consideration on the merits instead of rejecting it out of hand.
The court noted that habeas relief has never been extended to non-human entities. That does not end the discussion, however, for the history of the Great Writ has been one of gradual extension of its reach, in large part due to its flexibility and the very vagueness with which it is expressed in the statute. As grounds for rejecting it in this case, the court pointed to the nature of the social contract, which balances rights against duties and responsibilities. Legal “personhood” is defined in terms of both rights and duties. Since it cannot be said that chimpanzees can bear any legal duties or be held legally accountable for their actions, it would be in the court’s view inappropriate to confer legal rights on them, such as the liberty rights which are the focus of habeas relief. To the extent that the petitioners viewed the rights governing the confinement of animals generally as inappropriate, their redress had to be through the Legislature and not habeas corpus. Read More

D’Alessandro v Carro, 123 A.D.3d 1, 992 N.Y.S.2d 520 [1st Dept., 2014]

The First Department here left undisturbed a ruling which was clearly against the settled law of the Department, on an issue which the Court of Appeals subsequently settled statewide by agreeing with the First Department. Two procedural issues are presented: the effect on subsequent appeals of the dismissal of an appeal for failure to prosecute; and the meaning of “a change in the law” as it applies to motions to reargue or renew. The substantive question was whether nonpecuniary damages are available in a legal malpractice case, where the malpractice led to unnecessary years in prison. Read More

Rudra v Friedman, ___ AD3d ___, ___ NYS2d ___, 2014 NY Slip Op 09117 [2nd Dept., 2014]
Defendants in this motor vehicle accident action served their answer late, and the plaintiff rejected it. At the same time, plaintiff moved for a default judgment and an inquest on damages. Defendants cross-moved for leave to serve a late answer.
Supreme Court granted the plaintiff’s motion to the extent of granting a default judgment on liability, and granted the defendants’ motion to the extent of allowing them to answer, to assert only those affirmative defenses addressing the issues of serious injury and damages, and to conduct disclosure regarding those issues, and to “fully litigate” them. The trouble is, the court cannot split the difference in this way, and the Appellate Division reversed.
Once Supreme Court had granted the default judgment on liability, it should have directed the inquest without allowing disclosure. Read More

Basis Yield Alpha Fund (Master) v Goldman Sachs Group, Inc., 115 A.D.3d 128, 980 N.Y.S.2d 21 [1st Dept., 2014]
Liberty Affordable Hous., Inc. v Maple Ct. Apts., ___ AD3d ___, ___ NYS2d ___, 2015 NY Slip Op 00003 [4th Dept., 2015]
In these cases the First and Fourth Departments addressed whether or not the Court of Appeals intended, in Miglino v Bally Total Fitness of Greater N.Y., Inc., to change a long-standing construction of the role of evidence on a motion to dismiss for failure to state a cause of action. On such a motion, is the question limited to whether the pleading alleges a cause of action within its four corners, or can the movant submit evidentiary proof sufficient to show that something alleged to be a fact is not a fact at all? Read More