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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Altman v Kelly,

___ AD3d ___, 2015 NY Slip Op 04076 [2d Dept., 2015]

The notice to admit can be a useful, but limited, device to eliminate undisputed matters of fact from litigation. The limitation comes from well-established law holding that a notice to admit cannot be used to establish a fact that is an “ultimate conclusion” in the action, or one which “goes to the heart of the matters at issue.” (Priceless Custom Homes, Inc. v. O’NeillIn this motor vehicle negligence case the defendant Islip Pizza made admissions which, had they stood, would have established the essential issue of respondeat superior. That was sufficient cause to allow it to withdraw the admissions in the face of the plaintiff’s motion for summary judgment.

The individual defendant Kelly was driving his own vehicle at the time of the accident. Liability on Islip Pizza, therefore, accrued by virtue of respondeat superior or not at all. Plaintiff’s notice sought admissions that the offending driver was “in the course of his employment” with Islip Pizza at the time, that he was “acting in the scope of his employment”, and was “acting in furtherance” of its business. Islip Pizza, of course, could have objected to the notice as seeking admissions of ultimate fact. It might also have denied the requested admissions, or even ignored the notice. Instead, it admitted each of the facts. Note, by the way, that while a failure to respond to a proper request for admissions establishes the facts involved for the purpose of the litigation, there is no obligation to respond to a request which seeks admission as to contested ultimate issues (Orellana v. City of New York, 203 A.D.2d 542 [2d Dept., 1994]). The recipient’s failure to respond does not transform improper requests into admissions (Williams v. City of New York.)

Based in part on the admissions, plaintiff moved for summary judgment on liability against Islip Pizza. Islip Pizza cross-moved to withdraw the admissions. Supreme Court granted summary judgment, and denied the cross-motion. The Second Department reversed on both counts. Respondeat superior was an ultimate issue in the case, and the requests for admissions were therefore improper. CPLR 3123 (b) gives the court authority to allow a party to withdraw an admission at any time. In support of its cross-motion, Islip Pizza showed evidence that Kelly was in fact not acting within the scope if his employment. The court noted that the relevant facts could be addressed at the depositions. “[T]he purpose of a notice to admit is not to obtain information in lieu of other disclosure devices, such as the taking of depositions before trial.” (DeSilva v Rosenberg, 236 AD2d 508 [2d Dept., 1997]) Without the admissions, plaintiff failed to establish his entitlement to judgment, and the motion for summary judgment was denied without prejudice to renewal after disclosure.

Nasir v Tait,

___ AD3d ___,2015 NY Slip Op 04461 [2d Dept., 2015]

When disclosure is supervised by a referee (CPLR 3104), motions seeking review of the referee’s orders by the referring judge must be made “within five days after the order is made” (CPLR 3104 [d]). The referee here directed the plaintiff to provide authorizations for records of his treatment for diabetes, and the plaintiff moved for review of the order thirteen days after the date of the order. Supreme Court entertained the motion on its merits and modified the referee’s order.

The Appellate Division reversed. The five days in which to move runs from the making of the referee’s order, not the day it is entered, and the plaintiff offered no excuse for the failure to move timely. Supreme Court should not have entertained the motion on its merits.

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Malay v City of Syracuse,

___ NY3d ___, 2015 NY Slip Op 04164

CPLR 205(a) allows a litigant a six-month extension of the limitations period in which to re-commence an action when suit was in fact timely commenced, but terminated for a reason other than a final judgment on the merits (there are a few other exclusions, not relevant here). In calculating the end point of the extension, it is of course essential to fix the date the first action terminated. The question presented to the Court of Appeals here was where to fix the termination date where the order of dismissal was appealed as of right, but the appeal was dismissed for failure to perfect.

Plaintiff originally sued in federal court, combining federal civil rights claims and state negligence claims. The federal claims were dismissed on September 30, 2011, and the District Court declined to retain jurisdiction over the state-law claims. Plaintiff appealed as of right to the Second Circuit, but failed to perfect her appeal. The Second Circuit dismissed the appeal effective July 10, 2012. The failure to perfect was intentional, the plaintiff having decided that she could proceed to trial in the state courts more quickly than she could prosecute her appeal in the Second Circuit. She commenced her action in Supreme Court, Onondaga County, on June 25, 2012. That is to say, her state court action was untimely if the federal action terminated with the District Court’s dismissal order, but timely if it terminated with the dismissal of the appeal.

The Court of Appeals held that the termination date, for purposes of CPLR 205 (a), was the date of dismissal of the appeal, and the state court action had therefore been commenced within the extension period.

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Martens v St. Luke’s-Roosevelt Hosp. Ctr.,

___ AD3d ___, ___ NYS3d ___, 2015 NY Slip Op 04199 [1st Dept., 2015]

In this medical malpractice case, the defendant moved for summary judgment on limitations grounds, and the plaintiff opposed, claiming a continuous course of treatment.

In June of 2002, the defendant Dr. Wu diagnosed certain growths as fibroids. Between then and September, 2009, the plaintiff and Dr. Wu agreed to monitor the fibroids instead of removing them. When the plaintiff returned for follow-up visits, Dr. Wu asked about the fibroids, monitoring them through the use of ultrasound and physical examinations. When the plaintiff eventually decided to remove the fibroids through surgery, she consulted with Dr. Wu. The plaintiff did not, however, return for follow-up visits each year, due to work and travel.

Unfortunately, the growths were cancerous tumors instead of fibroids, and plaintiff sued for the misdiagnosis.

Dr. Wu’s motion was to dismiss so much of plaintiff’s claim as concerned treatment earlier than December 4, 2007. The plaintiff’s showing of the facts recited, however, was sufficient to raise a triable issue of fact as to whether there had been a continuous course of treatment running from the initial diagnosis of fibroids, and so the motion was properly denied.

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Bennett v St. John’s Home & St. John’s Health Care Corp.,

___ AD3d ___, ___ NYS2d ___, 2015 NY Slip Op 03952 [4th Dept., 2015]

Can the parties stipulate to extend the 120-day deadline set by CPLR 3212 (a) for summary judgment motions? If they do, may the court honor the stipulation? The Appellate Division here answered that the court acted within its discretion by considering the motion on its merits, and granting the motion, dismissing the complaint. The court held that the plaintiff had waived any objection to the untimely motion by consenting to it in advance.

Clearly, the court was not required to accept the stipulation. In Coty v County of Clinton,  42 A.D.3d 612 [3rd Dept., 2007], the motion court rejected the parties’ stipulation, denied the untimely motion, and the Appellate Division affirmed. Does it retain discretion to do so? The seminal decision here, of course, is Brill v City of New York, 2 NY3d 648 [2004], where the Court of Appeals stated unequivocally that the statute requires “good cause” for a late motion, and “[n]o excuse at all, or a perfunctory excuse, cannot be good ‘cause’ ” (Brill v City of New York, 2 NY3d 648, 652)

Here, the Appellate Division held that the plaintiff had waived any objection by entering into the stipulation, and that the court did indeed retain discretion to accept the stipulation and extend the deadline based on it and nothing else. The court held that Brill had not established a non-waivable public policy against extension of the deadline.

There was a one-judge dissent, which did view Brill as establishing a public policy against late summary judgment motions without sufficient excuse.

126 AD3d 921, ___ NYS2d ___ [2d Dept., 2015]

A referee takes his authority from the order of reference, and to the extent that he goes beyond the confines of the order he exceeds his authority. A reference to hear and determine can only be made on consent of the parties, and so where a referee to hear and report takes actions beyond merely reporting his findings he again exceeds his authority.

In this divorce action, certain of the issues were referred to a referee to hear and report, and his powers were therefore limited to doing just that: hearing the evidence and reporting his findings. The defendant wife sought to modify an earlier order of custody, and to stay an action in the Family Court. The order to show cause, including a TRO staying the Family Court proceeding, was presented to the referee rather than to the court, and he signed it. The parties had not consented to this expansion of the reference, and so the referee exceeded his authority. Supreme Court should have granted the plaintiff’s application to vacate the order to show cause.

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Lambert v Estren,

126 AD3d 942, ___ NYS2d ___, 2015 NY Slip Op 02454

When a party dies, but the cause of action survives (either for or against him), the action abates until a personal representative is appointed and substituted into the action. It is well settled that the death leaves me the court with no jurisdiction to determine the dispute until the substitution is made (Griffin v. Manning, 36 A.D.3d 530; Singer v. Riskin32 A.D.3d 839 [2d Dept.,2006])

Where a defendant has died, the plaintiff has standing to seek the appointment of a personal representative for him, if his family will not (SCPA §1002). Practical questions arise at this point. The one which presented here, and which prompts this note, is the choice of courts in which to make the application, either Surrogate’s Court or Supreme Court. Clearly, Supreme Court has coordinate jurisdiction with Surrogate’s Court, and has the power to make the appointment. On the other hand, such matters are not always as straightforward as they may seem.

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Connolly v 129 E. 69th St. Corp.,

___ AD3d ___, 2015 NY Slip Op 03450 [1st Dept., 2015]

The issue presented is whether the act of “filing” motion papers can be given controlling status for summary judgment deadline purposes. The motion court and the Appellate Division said “yes,” but the argument here is that it should not.

In this case, the assigned justice’s individual part rules set a deadline for summary judgment motions not based on the date the motion was “made,” but rather on the date it was “filed.” Motions were to be “filed” within 60 days of the filing of the note of issue. The movant “made” the motion within the time limit, but “filed” the papers the day after it expired. The judge denied the motion as untimely, and the Appellate Division affirmed.

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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.