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A Limitations Pitfall

January 18, 2017
Uncategorized

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]

Article 78s Against Sitting Judges – Choose Your Forum Carefully

June 28, 2016
CPLR Article 78, Uncategorized

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.

A Case of Interest. Just Don’t Read Too Much Into It.

June 20, 2016
CPLR 5001, CPLR 7806, CPLR Article 78, Uncategorized

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.

Orders to Show Cause Don’t Commence Actions

June 13, 2016
Commencement of Action, CPLR 2001, CPLR 304, Uncategorized

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.

Mind the Gap

June 6, 2016
Uncategorized

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.

Parties may not necessarily chart their own procedural course.

May 31, 2016
CPLR 3212, Summary Judgment, Uncategorized

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.

Judiciary Law §470 survives the constitutional challenge

May 26, 2016
attorneys, Judiciary Law § 470, Uncategorized

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.

It’s Poem In Your Pocket Day

April 28, 2016
Uncategorized

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

The Case of the Angry Ex, or Notice and Jurisdiction Under CPLR 308 (2)

February 23, 2016
CPLR 308, CPLR 317, Default Judgments, Jurisdiction, Uncategorized

McCord v Larsen, 132 A.D.3d 1115, 18 N.Y.S.3d 458 [3rd Dept., 2015]

Plaintiff alleged that she was injured in a building owned by the defendant, due to a defective porch railing. She sued, and claimed to have served the summons by deliver-and-mail (CPLR 308 [2]). The defendant did not answer, and judgment by default was obtained against him.

He now moved to vacate the default judgment on the grounds that he had not received the summons and complaint in time to defend, and to dismiss the action for lack of jurisdiction. Supreme Court denied both branches of the motion.

The first question must be the jurisdictional one, since if there is no personal jurisdiction the judgment is void. The first step in deliver-and-mail service is delivery to a person of suitable age and discretion at the defendant’s actual place of business, dwelling place, or usual place of abode. The delivery in this case was made to the defendant’s ex-wife, at her residence in the Town of Blooming Grove, Orange County. The defendant had moved out long before the delivery, and claimed that he had moved his business from that address as well. However, the plaintiff showed proof that he advertised his business from that address, and had not changed the address with either the Postal Service or DMV. Delivery was therefore held to have been validly made, and jurisdiction properly upheld.

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Hit-in-the-rear cases and summary judgment

January 26, 2016
CPLR 3212, Summary Judgment, Uncategorized

Phillip v D&D Carting Co., Inc., ___ AD3d ___, ___ NYS3d ___, 2015 NY Slip Op 09084 [2d Dept., 2015]

 

The Second Department reminds the bench that the mere fact of a rear-end collision does not automatically result in summary judgment, not even into a stopped vehicle and not even for a passenger in the stopped vehicle. Also, that CPLR 3212 (g) allows the court, even when denying summary judgment, to ascertain from the papers before it “what facts are not in dispute or are incontrovertible”, and in this way limit the issues at trial.

The stopped vehicle here was a passenger van, discharging passengers at a Brooklyn intersection. The rear of the van protruded into the traffic lane. The plaintiff was a passenger, belted into a seat in the last row. The rear-ending vehicle was a garbage truck. The plaintiff moved for summary judgment prior to depositions, against the owner and the driver of the truck. Plaintiff’s motion offered as proof the fact that she operated neither vehicle, was a passenger in the stopped vehicle, and so could not herself be at fault. The truck driver submitted an affidavit, in which he explained that he applied his brakes, but that the truck skidded on oil on the pavement. Supreme Court granted the plaintiff summary judgment, but the Appellate Division reversed.

Certainly, it is the rule that a rear-end collision into a stopped vehicle is enough to create an inference of negligence, and places the burden on the driver of the rear-ending vehicle to rebut the inference with a non-negligent explanation. The plaintiff must also establish his freedom from contributory negligence.

The plaintiff thus established her prima facie case on her motion, but the truck driver’s affidavit showed a non-negligent explanation, which was sufficiently detailed given the pre-deposition posture of the action. There was a triable issue of fact precluding summary judgment.

No party claimed that the plaintiff was contributorily negligent, since she was seat-belted in the last row of the van. Therefore, it was appropriate under CPLR 3212 (g) for the court to order that she was free from contributory negligence in the happening of the accident.