Parties May Chart Their Own Procedural Course

January 21, 2015
CPLR 3212, Summary Judgment

Friends of Thayer Lake LLC v Brown,

___ AD3d ___, ___ NYS2d ___, 2015 NY Slip Op 00420

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.

Continuous Representation I: When does it apply?

January 20, 2015
Limitations
24 N.Y.3d 320, ___ NYS2d ___, 2014 NY Slip Op 07291 [2014]
            The litigation over the estate of Sylvan Lawrence lasted twenty-two years, from 1983 to 2005. The opposing sides were the decedent’s widow and children, and his executor, his former business partner. Fifteen years into the litigation, the decedent’s widow made gifts of over a million dollars each to three of the partners of the firm representing her and her children, and of $400,000 to the firm itself. At the end of the litigation, the widow sought to compel the attorneys to return the gifts. The attorneys raised the defense of limitations, and the widow relied on the continuous representation toll to avoid it.

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Presenting a three-part series on the Continuous Representation Toll

January 20, 2015
Uncategorized

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.

Amendment to CPLR 3216 restricts court-issued 90-day notices

January 14, 2015
Calendar Practice, CPLR 3216

The Legislature has acted to amend CPLR 3216 so as to eliminate the indiscriminate and arbitrary imposition of CPLR 3216 90-day notices by the courts, and the administrative dismissals which frequently followed. CPLR 3216 (a) is amended to provide that any court initiative or motion must be upon notice to the parties. CPLR 3216 (b), which lists the preconditions to dismissal, is amended in two respects. As to time, paragraph (b) (2) now provides that at least one year since the joinder of issue or six months since the preliminary conference order must have elapsed, whichever is later. Most importantly, paragraph (b)(3) now provides that where it is the court that serves a 90-day notice, the notice must
“set forth the specific conduct constituting the neglect, which conduct shall demonstrate a general pattern of delay in proceeding with the litigation.” Read More

No Habeas Relief for Tommy the Chimp

January 13, 2015
CPLR 7002
2 Comments

People ex rel. Nonhuman Rights Project, Inc. v Lavery , ___ AD3d ___, ___ NYS2d ___, 2014 NY Slip Op 08531 [3rd Dept., 2014]

The newspapers have recently reported that an Argentinian court has extended the right to habeas corpus relief to an orangutan.
Here the Third Department rejected a similar petition to extend habeas corpus rights to a chimpanzee named Tommy, but gave it serious consideration on the merits instead of rejecting it out of hand.
The court noted that habeas relief has never been extended to non-human entities. That does not end the discussion, however, for the history of the Great Writ has been one of gradual extension of its reach, in large part due to its flexibility and the very vagueness with which it is expressed in the statute. As grounds for rejecting it in this case, the court pointed to the nature of the social contract, which balances rights against duties and responsibilities. Legal “personhood” is defined in terms of both rights and duties. Since it cannot be said that chimpanzees can bear any legal duties or be held legally accountable for their actions, it would be in the court’s view inappropriate to confer legal rights on them, such as the liberty rights which are the focus of habeas relief. To the extent that the petitioners viewed the rights governing the confinement of animals generally as inappropriate, their redress had to be through the Legislature and not habeas corpus. Read More

What is “a change in the law?”

January 12, 2015
Appellate Practice, CPLR 2221, Motion Practice

D’Alessandro v Carro, 123 A.D.3d 1, 992 N.Y.S.2d 520 [1st Dept., 2014]

The First Department here left undisturbed a ruling which was clearly against the settled law of the Department, on an issue which the Court of Appeals subsequently settled statewide by agreeing with the First Department. Two procedural issues are presented: the effect on subsequent appeals of the dismissal of an appeal for failure to prosecute; and the meaning of “a change in the law” as it applies to motions to reargue or renew. The substantive question was whether nonpecuniary damages are available in a legal malpractice case, where the malpractice led to unnecessary years in prison. Read More

A Defaulting Defendant Forfeits the Right to Disclosure

January 10, 2015
Default Judgments

Rudra v Friedman, ___ AD3d ___, ___ NYS2d ___, 2014 NY Slip Op 09117 [2nd Dept., 2014]
Defendants in this motor vehicle accident action served their answer late, and the plaintiff rejected it. At the same time, plaintiff moved for a default judgment and an inquest on damages. Defendants cross-moved for leave to serve a late answer.
Supreme Court granted the plaintiff’s motion to the extent of granting a default judgment on liability, and granted the defendants’ motion to the extent of allowing them to answer, to assert only those affirmative defenses addressing the issues of serious injury and damages, and to conduct disclosure regarding those issues, and to “fully litigate” them. The trouble is, the court cannot split the difference in this way, and the Appellate Division reversed.
Once Supreme Court had granted the default judgment on liability, it should have directed the inquest without allowing disclosure. Read More

Failure to State a Cause of Action – Use of Affidavits

January 9, 2015
Dismissal Motions, Motion Practice

Basis Yield Alpha Fund (Master) v Goldman Sachs Group, Inc., 115 A.D.3d 128, 980 N.Y.S.2d 21 [1st Dept., 2014]
Liberty Affordable Hous., Inc. v Maple Ct. Apts., ___ AD3d ___, ___ NYS2d ___, 2015 NY Slip Op 00003 [4th Dept., 2015]
In these cases the First and Fourth Departments addressed whether or not the Court of Appeals intended, in Miglino v Bally Total Fitness of Greater N.Y., Inc., to change a long-standing construction of the role of evidence on a motion to dismiss for failure to state a cause of action. On such a motion, is the question limited to whether the pleading alleges a cause of action within its four corners, or can the movant submit evidentiary proof sufficient to show that something alleged to be a fact is not a fact at all? Read More