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.

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

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

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

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

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

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.”

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

Matter of 985 Amsterdam Ave. Hous. Dev. Fund Corp. v Beddoe,

___ AD3d ___, 2015 NY Slip Op 02194 [1st Dept., 2015]

A properly-executed affidavit of service by mail raises a presumption that a proper mailing occurred, which is not overcome by a mere denial of receipt (Kihl v. Pfeffer, 94 N.Y.2d 118 [1999]). This is true even of entities which generate large volumes of documents served by mail. The presumption can be rebutted where the proof casts doubt on whether or not a particular document was, in fact, mailed as attested by the affidavit or, as here, even whether or not the document was ever generated in the first place.

The documents in question were default orders against the petitioner, allegedly generated by the Environmental Control Board regarding violation notices. Under the New York City Charter, the petitioner had 30 days from the receipt of the orders in which to request a new hearing for “good cause.” According to the ECB, that time had passed. Petitioner denied receiving the orders, and commenced this Article 78 proceeding. On the return of the Article 78 petition, the ECB was unable to produce copies of the notices and orders supposedly mailed to the petitioner. The trial court found that the presumption of mailing raised by the affidavits, and this finding was affirmed by the Appellate Division.

Interestingly, the trial court did make an error on another point, when it ordered ECB to grant petitioner another hearing. Since ECB had never actually considered whether petitioner had “good cause” for its default, the trial court could not make that determination for it. Rather, the matter had to be remanded to ECB for a determination of whether the defaults could be vacated for “good cause.”

O’Brien v Contreras,

___ AD3d ___, 2015 NY Slip Op 02463 [2d Dept., 2015]

An action is commenced by the filing of a summons and complaint, or a summons with notice. (CPLR 304[a]) No filing means no action, and anything that happens after is a nullity. What could be simpler? Yet people continue to get it wrong, with disastrous consequences.

Here, plaintiff intended to commence an action to modify the terms of some agreement. Plaintiff obtained an index number and presumably paid the fee, but never filed a summons and complaint. Rather, plaintiff obtained an order to show cause to modify the agreement. The motion was granted, and this appeal followed.

An order to show cause initiates a motion, not an action. A motion only exists as part of an action or proceeding, and not in a vacuum or as an independent proceeding. Without a filed summons and complaint there was no action in which to move. The order was therefore reversed for lack of jurisdiction, and the purported action dismissed.

Note that the amendment to CPLR 2001, allowing the court to correct errors in the filing process, presumes that the summons and complaint has been filed in some form. The failure to file in any form leaves the court without jurisdiction and cannot be corrected.