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CPLR 3211

Is This Release Ambiguous, Or Not?

September 8, 2015
CPLR 3211, Releases, Settlements
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Abdulla v Gross,

124 AD3d 1255 [4th Dept., 2015]

The release in this case had two, seemingly inconsistent, clauses. According to the first, it covered everything “from the beginning of the world.” According to the second, it covered one specific occurrence. Is either of the clauses controlling, or is the release ambiguous?

Plaintiff had two successive accidents in her home, and sued her landlord on the first. The parties reached a settlement, and counsel for the defendant thought it encompassed both accidents. The court held that the language of the release indicated otherwise, however, and so plaintiff’s action on the second accident was not barred.

Plaintiff’s first accident was in June of 2009, and her second on September 5 of the same year. As noted, she sued on the first accident only, but of course the second accident came up during disclosure, and defendant obtained disclosure on the injuries arising from it. The injuries were in fact related, with the plaintiff alleging that the September accident exacerbated the injuries sustained in June.

A settlement was reached in June of 2011, but plaintiff failed to send a release and stipulation of settlement until October 23, 2012. The “General Release” had in fact been executed by plaintiff in December of 2011. The defendant accepted the release and stipulation, paid on the settlement and filed the stipulation of discontinuance.

What counsel for the defendant did not know was that on the very last day of the limitations period, on September 5, 2012, the plaintiff had started a second action, based on the second accident. Defendant moved to dismiss the second action based on the release, arguing that the settlement was intended by the parties to encompass both accidents.

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Informal Appearances – A Review of Cases

August 19, 2015
Appearances, CPLR 320, CPLR 3211, Default Judgments
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One of the things I love about legal research is the way one issue leads to another. This series of posts started with two cases about motions for default judgments, and the jurisdictional consequences of failing to give notice where it is required. (Deutsche Bank Natl. Trust Co. v Gavrielova, Here and Paulus v Christopher Vacirca, Inc., Here) These discussions have already led to a side issue about marking motions “off calendar.” Here is another side issue, involving “informal appearances,” that is, actions which will be the functional equivalent of an appearance, even though the defendant has not made a formal appearance as specified in CPLR 320. That is, he has not served a formal notice of appearance, an answer, or a motion to dismiss.

Now, in both of our main cases, the defendants made a formal appearance by moving to dismiss under CPLR 3211 (a), but then failed to answer. They were therefore clearly entitled to notice of the motion for default judgments. Whether or not the defendants had appeared was not an issue. Reading some of the cases cited by these decisions, however, we come across fact patterns where the appearance was not so clear.

In some cases, the defendant’s “informal appearance” will entitle him to notice of a default motion. Since our recent cases have held that lack of notice renders the default judgment jurisdictionally defective (at least in the Second Department) a plaintiff who relies on the lack of a formal appearance and moves without notice may be unpleasantly surprised.

In others, it will be the defendant who is unpleasantly surprised, when he finds that his “informal appearance” has been sufficient to waive his objections to personal jurisdiction.

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Was This Defendant Really In Default? More On Marking Motions “Off”

August 4, 2015
CPLR 3211, Motion Practice
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Deutsche Bank Natl. Trust Co. v Gavrielova, 

___ AD3d ___, 2015 NY Slip Op 05907 [2d Dept., 2015]

An afterthought: I don’t think that the “defaulting” defendant in this case was in default at all.

I posted on this case on July 9, primarily on the issue of notice to the supposedly defaulting defendant. The plaintiff had failed to give notice of the motion for a default judgment to an appearing defendant, which was deemed to be a jurisdictional defect, leaving the resulting judgment open to attack, presumably in perpetuity. The defendant’s motion to vacate the default should therefore have been granted.

The path to default was interesting: the defendant had moved to dismiss under CPLR 3211, thus establishing an appearance and his entitlement to notice of any motion for default judgment. The motion was denied without prejudice, since the defendant had not included a copy of the complaint in the motion papers. The defendant renewed the motion but the motion was marked off, and the defendant thereafter failed to serve an answer.

As a secondary comment on the case, I noted my objection to the whole idea of a motion being marked off, rather than decided. It occurs to me now that the result of that procedure here is that the defendant was not, in fact, in default. Making the motion to dismiss extended his time to answer until ten days after service of notice of entry of the order deciding the motion (CPLR 3211 [f]). Since there has not been an order, the defendant’s time to answer remains open. The motion itself, in my view, remains pending and undecided.

Supreme Court’s order denying the motion to vacate notes that the motion was marked off in the Centralized Motion Part. By whom it was marked off, or by what authority, remains unclear. In any event, there was no order deciding the motion. For a clerk or referee to note the mark-off on the court’s internal records may suffice for the purposes of the court’s internal housekeeping, but it is not an acceptable substitute for an order.

Why Was This Case Dismissed?

June 9, 2015
Arbitration, CPLR 3211, CPLR 7503

Menche v Meltzer, Lippe, Goldstein & Breitstone, LLP,

___ AD3d ___, 2015 NY Slip Op 04617 [2d Dept., 2015]

In this legal malpractice case, the letter of engagement contained a broad arbitration clause, broad enough to cover the legal malpractice claim itself, as well as a claim for breach of fiduciary duty. The letter of engagement being indisputably a document within the meaning of CPLR 3211 (a)(1), and the arbitration provision clear, Supreme Court granted the motion to dismiss and the Appellate Division affirmed.

All of which sounds reasonable and plausible, until we ask why dismissal was the appropriate remedy.

Arbitration and its relationship to actions in court are the subject of CPLR Article 75. CPLR 7503 deals, in part, with the situation presented here: A party to an arbitration agreement has attempted to bypass the agreement by commencing an action in court.

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Two Actions Pending

February 16, 2015
CPLR 3211, Dismissal Motions, Motion Practice

Jadron v 10 Leonard St., LLC,

___ AD3d ___, ___ NYS2d ___, 2015 NY Slip Op 00730 [2nd Dept,. 2015]

There were two actions pending between the parties, and the question was whether the second action should be dismissed pursuant to CPLR 3211 (a)(4), on the grounds that the first action was already pending.
The plaintiff had been injured while working on the roof of a building owned by the defendants, and sued in Supreme Court, Suffolk County, alleging various Labor Law violations. The defendants included two LLCs which plaintiff alleged owned and maintained the building, the sole member of the LLCs, and the general contractor. Two days after the personal injury action was commenced, one of the LLCs transferred half of its assets to the other.
Two years later, while the action was in full swing, plaintiff commenced another action, in Supreme Court, Dutchess County, seeking to set the conveyance aside as fraudulent under the Debtor and Creditor Law. The defendants moved to dismiss the second action, on the grounds of the pendency of the first.

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Summary Judgment – Timeliness – Court-Ordered Deadlines

February 11, 2015
CPLR 2004, CPLR 2005, CPLR 3211, CPLR 3212

Quinones v Joan & Sanford I. Weill Med. Coll.,

114 A.D.3d 472, 980 N.Y.S.2d 88 [1st Dept., 2014]

When the court sets a deadline for summary judgment motions, shorter than the statutory 120 days, what standard governs applications for extensions of time? Is it the strict “good cause” provided for summary judgment motions generally, or is it the more lenient “procrastinator’s friend” standard of CPLR 2004? The First Department held here that the strict standard applies, no matter how the deadline was set. The purported “good cause” here, which was nothing more than the attorney’s confession of error, did not suffice. Read More