Archive

Monthly Archives: March 2015

Overcoming an Affidavit of Mailing

March 30, 2015
CPLR 2103, Service of Papers

Matter of 985 Amsterdam Ave. Hous. Dev. Fund Corp. v Beddoe,

___ AD3d ___, 2015 NY Slip Op 02194 [1st Dept., 2015]

A properly-executed affidavit of service by mail raises a presumption that a proper mailing occurred, which is not overcome by a mere denial of receipt (Kihl v. Pfeffer, 94 N.Y.2d 118 [1999]). This is true even of entities which generate large volumes of documents served by mail. The presumption can be rebutted where the proof casts doubt on whether or not a particular document was, in fact, mailed as attested by the affidavit or, as here, even whether or not the document was ever generated in the first place.

The documents in question were default orders against the petitioner, allegedly generated by the Environmental Control Board regarding violation notices. Under the New York City Charter, the petitioner had 30 days from the receipt of the orders in which to request a new hearing for “good cause.” According to the ECB, that time had passed. Petitioner denied receiving the orders, and commenced this Article 78 proceeding. On the return of the Article 78 petition, the ECB was unable to produce copies of the notices and orders supposedly mailed to the petitioner. The trial court found that the presumption of mailing raised by the affidavits, and this finding was affirmed by the Appellate Division.

Interestingly, the trial court did make an error on another point, when it ordered ECB to grant petitioner another hearing. Since ECB had never actually considered whether petitioner had “good cause” for its default, the trial court could not make that determination for it. Rather, the matter had to be remanded to ECB for a determination of whether the defaults could be vacated for “good cause.”

Commencing an Action is Supposed to be Easy, Right?

March 27, 2015
Commencement of Action, CPLR 2001, CPLR 304

O’Brien v Contreras,

___ AD3d ___, 2015 NY Slip Op 02463 [2d Dept., 2015]

An action is commenced by the filing of a summons and complaint, or a summons with notice. (CPLR 304[a]) No filing means no action, and anything that happens after is a nullity. What could be simpler? Yet people continue to get it wrong, with disastrous consequences.

Here, plaintiff intended to commence an action to modify the terms of some agreement. Plaintiff obtained an index number and presumably paid the fee, but never filed a summons and complaint. Rather, plaintiff obtained an order to show cause to modify the agreement. The motion was granted, and this appeal followed.

An order to show cause initiates a motion, not an action. A motion only exists as part of an action or proceeding, and not in a vacuum or as an independent proceeding. Without a filed summons and complaint there was no action in which to move. The order was therefore reversed for lack of jurisdiction, and the purported action dismissed.

Note that the amendment to CPLR 2001, allowing the court to correct errors in the filing process, presumes that the summons and complaint has been filed in some form. The failure to file in any form leaves the court without jurisdiction and cannot be corrected.

Can an attorney write a cease-and-desist letter without being sued for defamation?

March 23, 2015
Privilege

Front, Inc. v Khalil,

___ NY3d ___, 2015 NY Slip Op 01554 [2015]
Once litigation has begun, an attorney’s statements are absolutely privileged – the attorney cannot be sued for defamation. (With a caveat – see below) What about statements made during the run-up to actual litigation? Specifically, what about accusations made in a cease-and-desist letter? Are these privileged as well? And, if so, is the privilege absolute or qualified? This is, strictly speaking, not a procedural issue, yet it relates so closely to the preliminary stages of many lawsuits that it is worth discussion here.

The Court of Appeals held here that comments made by attorneys to prospective adversaries in anticipation of good-faith litigation are entitled to a qualified privilege. The privilege is lost where the statements were not made in good faith, and

“does not protect attorneys who are seeking to bully, harass, or intimidate their client’s adversaries by threatening baseless litigation or by asserting wholly unmeritorious claims, unsupported in law and fact, in violation of counsel’s ethical obligations.”

So here, where a defendant made a third-party defamation claim against the plaintiff’s attorney based on good-faith statements in a cease-and-desist letter, the statements were privileged and the third-party complaint was dismissed. Read More

Venue: The Convenience of Witnesses Trumps A School District’s Home County

March 16, 2015
CPLR 504, CPLR 510, Venue

Xhika v Rocky Point Union Free Sch. Dist.,

___ AD3d ___, 2015 NY Slip Op 00874 [2d Dept., 2015]

Even a specific statutory direction as to venue can be overridden by the convenience of material witnesses, but only when a sufficient showing is actually made. This case is an example of a movant who got it right.

The required showing on a motion for a change of venue based on the convenience of witnesses is well established. There are four elements: First, the names, addresses and occupations of the prospective witnesses must be stated. Second, the facts to which the proposed witnesses will testify at the trial must be stated, so that the court may judge whether the proposed evidence of the witnesses is material and necessary. Third, it must be shown that the witnesses for whose convenience a change of venue is sought are in fact willing to testify. Fourth, there must be a showing as to how the witnesses in question would in fact be inconvenienced in the event a change of venue were not granted. (O’Brien v Vassar Bros. Hosp., 207 AD2d 169 [2d Dept., 1995]. Read More

In Honor of Pi Day

March 13, 2015
Appellate Practice, Trials

Tomorrow, March 14, 2015, is Pi Day. (3.1415, don’t you see?) In honor thereof, I present:

Kumar v PI Assoc., LLC,

___ AD3d ___, 2015 NY Slip Op 00849 [1st Dept., 2015]

When a verdict is internally inconsistent, the allowable remedies are either sending the jury back to reconsider or a new trial. The trial court may not resolve the inconsistency by making its own findings of fact.

This was a sidewalk trip-and-fall in front of a storefront owned by the defendant PI Associates and leased to the defendant Pretty Girl. The jury found that the plaintiff, PI and Pretty Girl were all negligent, but that only Pretty Girl’s negligence was a proximate cause of the accident. The jury then apportioned fault at 80% against Pretty Girl and 10% each against plaintiff and PI. The apportionment against plaintiff and PI was, of course, inconsistent with the finding of lack of causation.

The inconsistency was immediately recognized by the court and the parties. Rather than send the jury back for further consideration, the court discharged the jury and entertained motions. Plaintiff moved to set aside the inconsistent verdict and for a directed verdict finding that PI’s negligence was a proximate cause. PI, for its part, moved to set the inconsistent verdict aside and for a directed verdict setting its share of fault at zero. Supreme Court chose a third alternative, setting the verdict aside and issuing a directed verdict finding the negligence of both plaintiff and PI to have been proximate causes of the accident. Read More

Was the Client’s Discharge Letter Defamatory?

March 13, 2015
Attorney and Client

Frechtman v Gutterman,

115 A.D.3d 102, 979 N.Y.S.2d 58 [1st Dept., 2014]

When a client discharges his lawyer in a letter, the statements made in the letter are privileged and the lawyer has no claim for defamation, even if the letter makes accusations of malpractice which in other contexts might be actionable.

The statements here included these:

“We do not believe you adequately represented our interest,”
“We believe your failure to act in our best interest in reference to certain matters upon first engaging in the matter may equate to misconduct, malpractice, and negligence,”
“We believe that your future representation on this matter only became necessary, as a result of mistakes and oversights made by you acting as counsel,” and
“[W]e believe that we should not pay for the value of services for which any misconduct or counsel oversight relates to the representation for which fees are sought.”

The lawyer here sued for defamation, and the defendant moved to dismiss for failure to state a cause of action. Supreme Court dismissed the action, and the First Department affirmed. Read More

Appealing a Sua Sponte Order

March 11, 2015
Appellate Practice

Meng v Allen,

117 AD3d 621, 985 N.Y.S.2d 875 [1st Dept., 2014]
There is no appeal as of right from an order made sua sponte, and an appeal taken from such an order is subject to dismissal. That does not mean, however, that there is no avenue of redress. The proper avenue is to move on notice to vacate the sua sponte order, and if the motion is denied to appeal from the denial.

Here, Supreme Court, sua sponte, reinstated an order dismissing the complaint on forum non conveniens grounds. (The sequence of events leading to the reinstatement is not specified in the decision.) The plaintiff failed to move to vacate the sua sponte order, and the attempted appeal from the sua sponte order itself was dismissed as not being from an appealable paper. Read More

Did the Insurance Man Influence the Jury? – How Not to Make an Investigation

March 9, 2015
Trials

Varano v Forba Holdings, LLC,

___ AD3d ___, ___ NYS2d ___, 2015 NY Slip Op 01090 [4th Dept., 2015]
This dental malpractice case resulted in a defense verdict. After the jury had been discharged, one juror complained that a member of the trial audience had been “stalking” the jurors during lunch and other recesses in the trial. The juror described the behavior as “creepy.” It turned out that the person was representative of the defendants’ insurer, there to observe the trial on its behalf.

The court interviewed the juror in camera, but failed to notify counsel or obtain their consent. Counsel were not given any opportunity to participate in the interview or to be heard concerning the procedure. The court interviewed the complaining juror only, and not the other jurors. While plaintiff’s motion to set the verdict aside was pending, the court prohibited counsel from contacting any of the jurors. Since the evidence before the court was thereby limited to the statements of the complaining juror, the defendants were, as the Fourth Department noted, precluded from any meaningful opposition to the motion and the result was “a foregone conclusion.” The trial court set the verdict aside on the grounds of improper outside influence and ordered a new trial.

The Fourth Department found the one-sided and unduly limited manner of the court’s investigation to be an abuse of discretion and reversed. On the limited record, the court found itself unable to determine if there in fact had been any influence on the jury which would likely have impacted the verdict. It therefore remitted for a full evidentiary hearing.

Standing to Sue on Behalf of an Incapacitated Person

March 6, 2015
CPLR 1201, Standing

Kay v State of New York,

___ AD3d ___, 2015 NY Slip Op 01784 [2d Dept., 2015]

This was a medical malpractice case in the Court of Claims, brought on behalf of a developmentally disabled adult woman by her father, who along with her mother had been made the co-guardian of her person. Guardianships under both SCPA Article 17-A and Mental Hygiene Law Article 81 have two aspects, guardianship of the property and guardianship of the person. Protection of the ward’s property, including the right to sue and be sued, rests in the property guardian (as the name implies). A guardian of the person, but not of the property, has no standing to sue on behalf of the ward. Therefore, when the defendant moved to dismiss for lack of standing, the motion was properly granted.

CPLR 1201 sets forth the priority of persons entitled to appear in an action on behalf of an infant or  person declared incompetent, or an adult incapable of prosecuting or defending her rights. First on the list is a guardian ad litem, followed by a guardian of the property. Only then comes the priority of a custodial parent of an infant. Since the ward here was an adult, that option was not open to the father. From the opinion, it appears that there was no guardian ad litem. What is not clear from the opinion is whether any other person had been appointed as guardian of the ward’s property. Assuming not, in order to prosecute this suit on the ward’s behalf the father could have sought to be appointed either as guardian of her property or as guardian ad litem.

Note, by the way, that CPLR 1201 uses obsolete terminology regarding the ward. The parents had been appointed under SCPA Article 17-A, and the finding was that their daughter was developmentally disabled, not incompetent. A proceeding under Mental Hygiene Law Article 81 leads to a finding that the subject is incapacitated, not incompetent. The rules regarding standing are the same, however. We may hope that at some point the Legislature will update CPLR 1201 to specifically include the modern variants in appointment of guardians.