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Monthly Archives: April 2015

It’s National Poem In Your Pocket Day

April 30, 2015
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In honor of National Poem In Your Pocket Day

Law Like Love

W.H. Auden

Law, say the gardeners, is the sun,
Law is the one
All gardeners obey
Tomorrow, yesterday, today.

Law is the wisdom of the old
The impotent grandfathers shrilly scold;
The grandchildren put out a treble tongue,
Law is the senses of the young.

Law, says the priest with a priestly look,
Expounding to an unpriestly people,
Law is the words in my priestly book,
Law is my pulpit and my steeple.

Law, says the judge as he looks down his nose,
Speaking clearly and most severely,
Law is as I’ve told you before,
Law is as you know I suppose,
Law is but let me explain it once more,
Law is The Law.

Yet law-abiding scholars write;
Law is neither wrong nor right,
Law is only crimes
Punished by places and by times,
Law is the clothes men wear
Anytime, anywhere,
Law is Good-morning and Good-night.

Others say, Law is our Fate;
Others say, Law is our State;
Others say, others say
Law is no more
Law has gone away.

And always the loud angry crowd
Very angry and very loud
Law is We,
And always the soft idiot softly Me.

If we, dear, know we know no more
Than they about the law,
If I no more than you
Know what we should and should not do
Except that all agree
Gladly or miserably
That the law is
And that all know this,
If therefore thinking it absurd
To identify Law with some other word,
Unlike so many men
I cannot say Law is again,
No more than they can we suppress
The universal wish to guess
Or slip out of our own position
Into an unconcerned condition.
Although I can at least confine
Your vanity and mine
To stating timidly
A timid similarity,
We shall boast anyway:
Like love I say.

Like love we don’t know where or why
Like love we can’t compel or fly
Like love we often weep
Like love we seldom keep.

Correcting a Mis-named Defendant

April 28, 2015
CPLR 305, Parties
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Sanders v 230FA,

___ AD3d___, 2015 NY Slip Op 02107

The summons and complaint in this race-discrimination action mistakenly named Rooftop Lounge, LLC, as a defendant, instead of the correct entity, 230FA, LLC. It appears, although the brief Appellate Division opinion doesn’t explicitly say so, that the limitations period had expired before the error was noticed.

The path to correction of this error is CPLR 305 (c), which allows amendment of a summons so long as none of the defendant’s substantial rights are prejudiced. Where, as here, the proper entity has been misnamed in the summons, but has in fact been properly served with it and there is no prejudice, the misnomer may be corrected even after the limitations period has expired. The circumstances must be such that the proper entity could not have been misled by the misnomer as to who or what was actually being sued.

Where the summons and complaint were served on the wrong entity, there is no personal jurisdiction over the correct entity that will allow the correction (Ingenito v Grumman Corp., 192 AD2d 509). If the limitations period has expired, there may be no way to cure the defect. CPLR 205 (a) would not help, since no timely action was commenced against the proper defendant.

Here, the correct entity was served with the summons and complaint within the limitations period, and there was no prejudice. The amendment to reflect the defendant’s actual name was therefore properly allowed.

Lack of Capacity – Some Errors Are Easy to Fix, Some Aren’t

April 23, 2015
Capacity, CPLR 2001, CPLR 205

Matter of Town Bd. of Town of Brighton v West Brighton Fire Dept., Inc.,

126 A.D.3d 1433 [4th Dept., 2015]

This hybrid Article 78 proceeding and declaratory judgment action was commenced in the name of the Town Board to compel the respondent-defendant Fire Department to comply with a contract between it and the Town Board. The initial problem was that the Town Board has no capacity to sue in its own name: that authority is lodged by the Town Law in the town itself. The Town Board may direct its officers to institute the action, but the action must be in the name of the town. Dismissal is not required, however, as the irregularity may be corrected under CPLR 2001, the Town substituted for the Board, and the caption amended accordingly.

See, for another example, Villafane v Banner, 87 Misc2d 1037 [1976], where the infant plaintiff’s grandmother and foster parent purported to sue as “natural guardian.” The informal arrangement, though of long standing, did not rise to the level of “legal custody,” and so the grandmother lacked capacity to sue. There was still no need to dismiss the complaint, and the proper remedy was a nunc pro tunc appointment and substitution of a guardian ad litem. Read More

Habeas Relief for Chimps – Will Hercules and Leo Succeed?

April 22, 2015
CPLR Article 70, Habeas Corpus
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I have previously reported attempts by the Nonhuman Rights Project to have chimpanzees recognized as legal persons, through the vehicle of writs of habeas corpus. (here and here) Well, here we go again.

The New York Times reported yesterday that a judge in Supreme Court, New York County has signed an Order to Show Cause for a writ of habeas corpus relating to Hercules and Leo, two chimpanzees kept at SUNY Stony Brook. The petition is at least the fourth such brought by the Nonhuman Rights Project, one in each Department. The main argument made in the petitions is that chimpanzees, being undeniably sentient, intelligent beings, are “persons” within the meaning of the Great Writ of habeas corpus, and are therefore entitled to its protections. As the article properly notes, merely signing the Order to Show Cause is not an indication that the judge will ultimately grant the writ and declare the chimpanzees to be legal persons. The initial press release by the Nonhuman Rights Project trumpeted the claim that by signing the Order to Show Cause, the court necessarily recognized the humanity of Hercules and Leo. That seems an overly optimistic reading. As if to underscore that point, the judge later amended the order by striking the words “& WRIT OF HABEAS CORPUS”. Still, this is the first time one of these proposed Orders to Show Cause has actually been signed, and therefore the first time one will reach the stage of a hearing.  Read More

Article 78 – Can the Respondent’s Answer be Bypassed?

April 21, 2015
CPLR Article 78

Matter of Kickertz v New York Univ.,

___ NY3d ___, 2015 NY Slip Op 02800

In an Article 78 proceeding, if the respondent raises objections in point of law by pre-answer motion, and the motion is denied, “the court shall permit the respondent to answer”. (CPLR 7804 [f]) Despite the mandatory language there is an exception, recognized in Matter of Nassau BOCES Cent. Council of Teachers v Board of Coop. Educ. Servs. of Nassau County, 63 N.Y.2d 100 [1984], which allows the answer to be bypassed where the facts are so fully developed in the parties’ presentations as to be undisputed, and where there will be no prejudice from taking the shortcut. In BOCES, for example, the objection in point of law had been to standing, and while the papers developed the facts they did not clearly rule out triable issues. An answer was therefore required before the merits could be ruled on.

Here, both Supreme Court and the Appellate Division majority found the facts sufficiently developed to allow decisions on the merits without an answer. They then reached opposite conclusions on those merits. The Court of Appeals, however, found the facts sufficiently in doubt as to disallow the procedural shortcut, vacated the judgment and directed the service of an answer by the respondent. Read More

Oral Stipulations and Pro Se Litigants

April 14, 2015
CPLR 2104, Stipulations

Fulginiti v Fulginiti,

___ AD3d ___, 2015 NY Slip Op 03017 [3rd Dept., 2015]

When spreading an oral stipulation on the record, it is important to specify all of the elements, especially when the adversary is pro se. That seems obvious, but the failure to lock down the details proved costly here.

Plaintiff wife and defendant husband claimed and counterclaimed for divorce on grounds of cruel and inhuman treatment. At an appearance before the court, the husband was pro se, and a stipulation was spread upon the record. Although the husband would later attempt to disavow the stipulation in its entirety, there was no getting around the fact that the parties were in court, before the judge and on the record, which is all that CPLR 2104 means when it allows oral stipulations “in open court.”

The real issue was whether or not the husband withdrew his answer in that stipulation. Read More

Order Relieving Counsel Stays the Action

April 7, 2015
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Fan v Sabin,

___ AD3d ___, 2015 NY Slip Op 01400 [1st Dept., 2015]

When a court grants an attorney leave to withdraw as attorney of record in an action, the action is stayed by operation of CPLR 321 (c) until 30 days after notice to retain new counsel is served upon the client. The circumstances in which a court may vacate the automatic stay and direct the action to proceed are rare, and were not present here. Therefore, the court had no power to decide a summary judgment motion against the now unrepresented client, and Supreme Court’s order granting the motion was reversed. Read More

Disclosure Demands and the Law of the Case

April 3, 2015
Collateral Estoppel/Res Judicata, Disclosure

Ziolkowski v Han-Tek, Inc.,

___ AD3d ___, 2015 NY Slip Op 02578 [4th Dept., 2015]

This was a workplace injury case, and the defendant Zynergy Solutions had moved to compel disclosure of certain documents by the plaintiff’s accountant, asserting that they were relevant to the plaintiff’s lost-wages claim. The motion was denied. The accountant was then deposed, and the defendant Han-Tek served a subpoena for the same documents. Plaintiff moved to quash, on the basis that the first order constituted the law of the case. Supreme Court granted the motion to quash.

The Fourth Department reversed. The deposition provided further evidence, making the law of the case doctrine inapplicable. Note, also, the recent determination of the Court of Appeals in Matter of Kapon v Koch, that one seeking to avoid disclosure by a non-party must show that the material or testimony sought is “utterly irrelevant.”

Non-Resident Attorneys Must Maintain a New York Office to Practice Here – For Now

April 1, 2015
22 NYCRR 520.13, Constitutional Law, CPLR 2103, Judiciary Law § 470

Schoenefeld v State of New York,

___ NY3d ___, 2015 NY Slip Op 02674 [2015]

The Court of Appeals has construed Judiciary Law § 470 as indeed meaning what it says: a non-resident attorney, admitted to the Bar of New York and in compliance with all other requirements, may practice before the courts of the state only if she maintains a physical office for the transaction of business in New York. In so holding, the Court almost certainly paved the way for the US Court of Appeals for the Second Circuit to invalidate the statute under the Privileges and Immunities Clause of the US Constitution.

The statute reads: 
“A person, regularly admitted to practice as an attorney and counsellor, in the courts of record of this state, whose office for the transaction of law business is within the state, may practice as such attorney or counsellor, although he resides in an adjoining state.”

The Court responded to a certified question from the Second Circuit. (Schoenefeld v State of New York, 748 F.3d 464 [2d Circ., 2014]) Plaintiff Ekaterina Schoenefeld is a resident of New Jersey and a member of the New Jersey bar, whose only office is in Princeton. She has also been admitted to the bars of New York and California. She alleges in her complaint that she has in fact passed up the opportunity to represent clients in New York courts to avoid violating the Judiciary Law provision.

She sued in federal court, claiming that the requirement for the maintenance of an office in New York places a burden upon her and other non-resident attorneys, not placed upon residents. Read More