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.
Warner v Orange County Regional Med. Ctr.,
___ AD3d ___, 2015 NY Slip Op 02113 [2d Dept., 2015]
It is a sad fact of life in the courts that no attorney can be in two places at once. (A sub-atomic particle can be in two places at once, but only until someone sees it. Then the wave function collapses and it’s stuck. Or so they tell me.)
Here, a week before the scheduled trial date, plaintiff’s counsel notified defendant’s counsel by fax that he was already on trial, that the trial was expected to continue for another three weeks, and requesting an adjournment. Defense counsel opposed the adjournment, and sent a letter to the trial court including the plaintiff’s fax. The court refused the adjournment in a written order, which specified that the plaintiff’s failure to appear would result in dismissal and refusing in advance to accept any affirmation of actual engagement.
On the trial date, substitute counsel appeared, with an affirmation of actual engagement, and stated that the plaintiff was not ready to proceed, whereupon the court dismissed the action. Read More
Jadron v 10 Leonard St., LLC,
___ AD3d ___, ___ NYS2d ___, 2015 NY Slip Op 00730 [2nd Dept,. 2015]
There were two actions pending between the parties, and the question was whether the second action should be dismissed pursuant to CPLR 3211 (a)(4), on the grounds that the first action was already pending.
The plaintiff had been injured while working on the roof of a building owned by the defendants, and sued in Supreme Court, Suffolk County, alleging various Labor Law violations. The defendants included two LLCs which plaintiff alleged owned and maintained the building, the sole member of the LLCs, and the general contractor. Two days after the personal injury action was commenced, one of the LLCs transferred half of its assets to the other.
Two years later, while the action was in full swing, plaintiff commenced another action, in Supreme Court, Dutchess County, seeking to set the conveyance aside as fraudulent under the Debtor and Creditor Law. The defendants moved to dismiss the second action, on the grounds of the pendency of the first.
Fudge v North Shore-Long Is. Jewish Health Servs. Plainview & Manhasset Hosps.,
117 A.D.3d 783, 986 N.Y.S.2d 490 [2d Dept., 2014]
Dismissal of a cause of action is only rarely warranted on opening statements alone. Here, in a medical malpractice wrongful death case, the court went so far as to dismiss a case during the plaintiff’s opening, on its own motion. Unsurprisingly, the Appellate Division reversed, and sent the matter back for a new trial, before a different Justice. Read More
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