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

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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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.

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.

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

Anonymous v Lerner,

___ AD3d ___, ___ NYS2d ___, 2015 NY Slip Op 00469 [1st Dept., 2015]

The anonymous plaintiff claimed that the defendant negligently and fraudulently gave her herpes. The defendant moved to compel her to be named in the action, which Supreme Court granted and the First Department here affirmed. Clearly, the allegations of a sexually transmitted disease implicate substantial privacy rights, but then the complaint implicates the defendant’s privacy rights to the same extent. The plaintiff didn’t help herself by giving interviews to the news media before serving the summons and complaint on the defendant. The court’s discretion is to be guided by balancing the plaintiff’s privacy claims against the presumption favoring open trials and prejudice to the defendant. The court noted that mere claims of public humiliation and embarrassment will not justify allowing a party to proceed anonymously.

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There were no fewer than three significant cases this year concerning limitations in legal malpractice cases and the continuous representation toll. I’ll present discussions of them over the next two weeks. First up will be the Court of Appeals decision in Matter of Lawrence, where the question was whether the toll applied to an action to recover gifts given to the attorneys during a prolonged estate litigation. [Spoiler alert: it didn’t.] Next will be Farage v Eisenberg, a Second Department case where the question was where to fix the end of the representation and thus the end of the toll. Finally, the First Department case of Red Zone v Cadwalader, Wickersham & Taft, illustrating the underlying rationale for the rule and the actions that may justify applying it.