8/3/2016
Not One Source Can be Consulted
Exclusively to Determine Practice and
Procedure Issues
• The CPLR
• The Uniform Rules, 22 NYCRR Part 202
• The Commercial Part Rules in the Uniform Rules
(22 NYCRR 202.70)
• Local Court Rules
• Individual Judge’s Rules
• Individualized Orders (e.g., PCO)
• Local Practice
• Appellate Division Rules
Examples of Influence of Rules Over Practice
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Rule 130 signing requirement v. CPLR 2101(d) indorsement by
attorney/party
Rule 130 v. CPLR 8303-a
Calendar Practice Issues in rules, including motion to vacate Note of
Issue, 22 NYCRR 202.21 (Note of Issue), 202.26 (Pretrial
Conferences), 202.27 (defaults at calendar call or conference) v.
CPLR Article 34
22 NYCRR 202.12 (Preliminary Conference); 202.15 (videotape
depositions); 202.19 (DCM) v. CPLR Article 31
22 NYCRR 202.17 (Exchange of medical reports in p-i and w-d actions)
v. CPLR 3121
Motion Practice: 22 NYCRR 202.6 (RJI); 202.7 (Calendaring of
Motions); 202.8 (Motion Procedure) v. CPLR 2214, 2215 etc.
CPLR 3217 v. 202.28 (Discontinuance of civil actions)
Appellate Division Rules v. CPLR
Commercial Part Rules (22 NYCRR 202.70)
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8/3/2016
New CPLR 214-f: Tolling Statute of
Limitations for Personal Injuries Arising Out
of Exposure to Groundwater Contaminated
by Substances, Compounds or Toxins
within Superfund Site
•
Ҥ 214-f. Action to recover damages for personal injury caused by
contact with or exposure to any substance or combination of
substances found within an area designated as a superfund site.
Notwithstanding any provision of law to the contrary, an action to
recover personal damages for injury caused by contact with or
exposure to any substance or combination of substances contained
within an area designated as a superfund site pursuant to either
Chapter 103 of Section 42 of the United States Code and/or section
27-1303 of the environmental conservation law, may be
commenced by the plaintiff within the period allowed pursuant to
section two hundred fourteen-c of this article or within three years of
such designation of such an area as a superfund site, whichever
is latest.”
L. 2016 Ch. 128, effective July 21, 2016
New CPLR Article 21-a (CPLR
2110, 2111, 2112): Electronic Filing
• Via a 2015 amendment, CPLR Article 21-A was added. It
includes new CPLR sections 2110, 2111, and 2112.
• Implicates other sections outside of the CPLR.
• Amendment vests in Chief Administrative Judge authority to
implement mandatory e-filing with the County Clerk’s consent.
• Intended to provide Chief Administrative Judge with more
flexibility to expand e-filing without having to obtain
incremental legislative authority.
• L. 2015, Ch. 237, effective August 21, 2015 and will “take
effect immediately, except that authorization for e-filing in
criminal and Family Court cases would sunset on September
1, 2019.”
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8/3/2016
CPLR 2103[b][2] 2015 Amendment
…where a period of time prescribed by law
is measured from the service of a paper and
service is by mail, five days shall be added
to the prescribed period if the mailing is
made within the state and six days if the
mailing is made from outside the state but
within the geographic boundaries of the
United States.
L. 2015, Ch. 572, effective January 1, 2016.
CPLR 3212[b] 2015 Amendment
Response to Singletree Line of
Cases
Where an expert affidavit is submitted in support
of, or opposition to, a motion for summary
judgment, the court shall not decline to consider
the affidavit because an expert exchange
pursuant to subparagraph (i) of paragraph (1) of
subdivision (d) of section 3101 was not furnished
prior to the submission of the affidavit.
L. 2015, Ch. 529, effective December 11, 2015 and applies to all pending cases where
a summary judgment motion is made on or after the effective date and to all cases filed
on or after such effective date.
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8/3/2016
CPLR 2106 Amendment: Use of Affirmation in
Place of Affidavit (Digest – May, 2015)
It Is Now Easier to Obtain the Statement of a
Person Abroad Than One in New Jersey!
“Such affirmation shall be in substantially the following form:
I affirm this day of
, , under the penalties of
perjury under the laws of New York, which may include a
fine or imprisonment, that I am physically located outside
the geographic boundaries of the United States, Puerto
Rico, the United States Virgin Islands, or any territory or
insular possession subject to the jurisdiction of the
United States, that the foregoing is true, and I
understand that this document may be filed in an action
or proceeding in a court of law. (Signature)”.
CPLR 3113(c): Amendment re
Representing Non-Parties at Deposition
We are no longer potted plants!
Response to 4th Dep’t decision in Thompson v.
Mather, 70 A.D.3d 1436 (4th Dep’t 2010).
• CPLR 3113(c) was amended (eff. Sept. 23, 2014)
to take the most liberal position, that is, that nonparty counsel can participate in his or her client’s
deposition and make objections in the same
manner as for a party.
L. 2014, Ch. 379, §1
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8/3/2016
Adoption of Numerous Commercial
Division Rules
• Rule 11-a: 25 Limited Interrogatories
• Rule 11-b: Privilege Logs
• Rule 11-c: Guidelines for Discovery of Electronically
Stored Information From Nonparties
• Rule 11-d: Depositions and the 10/7 Rule
• Rule 11-f: Permits Identification of Matters for Examination
at Deposition of Entity
• Rule 11-e: Document Responses
• Rule 14: Discovery Disputes and the Preference for
Letters and Court Conferences Over Formal Motions
• Rule 34: Staggered Court Appearances
CPLR 304: Service of Bare
Summons was Nullity
• Plaintiff filed adequate summons with notice but
served bare summons, which was “a nullity”.
• Defendant's demand for a complaint was
premature and did not invoke the time limits of
CPLR 3012 (b).
Heath v. Normile, 131 A.D.3d 754, 755, 15
N.Y.S.3d 509.
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8/3/2016
CPLR 304: Failure to
Comply with Court of
Claims Act Filing
Requirement is Fatal
• Not correctable under CPLR 2001.
• Filing defects in general.
Hargrove v. State of New York, 138 A.D.3d 777
(2nd Dep’t 2016)
CPLR 305(a): Amending
Summons
• If substantial right of a party against whom the
summons issued is not prejudiced.
• Misnomer in description of party - was correct
defendant properly served and is not prejudiced
by amendment?
New Found., LLC v. Ademi, 2016 NY Slip Op
04922 (2d Dep’t 2016)
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8/3/2016
CPLR 308(5): Service “Impracticable”
(Digest – July, 2015)
Be Careful the Next Time You Say:
Facebook Me!
Service by Facebook – I’m Not a Friend
• Supreme Court Justice permits service by Facebook without any
additional service in a divorce action.
• Plaintiff established that Facebook account she identified actually
belonged to the defendant, the defendant regularly logged onto his
account, and the plaintiff had no other means of contacting or serving
the defendant, thereby obviating the need for a second backup or
supplemental service.
Baidoo v. Blood-Dzraku, 5 N.Y.S.3d 709 (Sup. Ct., N.Y. Co. 2015)
Justice Matthew Cooper.
CPLR 313: Service out of
State Where There is Basis
Jurisdiction Over Defendant
• Can use methods permitted within state (e.g., CPLR
308)
• Service by mail under Hague Convention now
permitted in all four departments.
• First Department finally joins the others.
Mutual Benefits Offshore Fund v. Zeltser, 2016 NY
Slip Op 04344 (1st Dep’t 2016)
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8/3/2016
CPLR 3213: Timing of
Summary Judgment in Lieu
of Complaint
• Combines commencement and motion practice.
• Instrument for payment of money only or upon a
judgment.
• Motion must be made returnable upon sufficient
notice as provided for in CPLR 320 for making
appearance. If not, fatal jurisdictional defect.
Bhanti v. Jha, 30 N.Y.S.3d 888 (2d Dep’t 2016)
CPLR 2001: Mistakes,
Omissions, Defects and
Irregularities
• What is covered?
• Does not save jurisdictional type
defects.
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8/3/2016
CPLR 501: Forum Selection Clauses
Motion to Change Venue Based on Forum
Selection Clause in Consumer Agreement
Should Enforceability Be Based on When the
Consumer First Saw the Agreement at Resort?
(Digest – November, 2015)
• In concurring opinion Judge Dickerson expressed
concern over whether consumer had a sufficient
opportunity to read, consider and reject the forum
selection clause.
Karlsberg v. Hunter Mtn. Ski Bowl, Inc., 131 A.D.3d
1121, 1121 (2d Dep’t 2015).
CPLR 503: Residence of Domestic
Corporation For Venue Purposes is
County Designated in Certificate of
Incorporation
Matoszko v. Kielmanowicz, 136 A.D.3d 762 (2nd Dep’t 2016)
• Same for foreign corporation: Crucen v. Pepsi-Cola Bottling
Co. of N.Y., Inc., 139 A.D.3d 538 (1st Dep’t 2016)
• Office or place of business does not have to be in that
County
• Check secretary of state site
• Residence of Limited Liability Company: principal office as
designated in Articles of Organization
Pinos v. Clinton Cafe & Deli, Inc., 139 A.D.3d 1034 (2nd
Dep’t 2016)
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8/3/2016
CPLR 503: Residency for
Purposes of Application of Lead
Paint Law
• Residency v. Domicile
• Majority: Stay for some length of time and the
person has to “have the bona fide intent to retain the
place as a residence with at least some degree of
permanency.”
• Dissent: Majority has removed distinction between
“residence and domicile.”
Yaniveth R. v. LTD Realty Co., 27 N.Y.3d 186 (2016)
(Digest)
CPLR 3014 Statements: Pleading Statute
of Limitations Defense
(Digest – July, 2015)
And So You Thought You Knew How to
Plead a Statute of Limitations Defense?
First Department Casts Doubt on
Common Practice
• How much detail is necessary?
• Do you need to set forth the length of the SOL?
• Impact on other defenses?
Scholastic Inc. v. Pace Plumbing Corp., 8 N.Y.S.3d 143 (1st
Dep’t 2015).
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8/3/2016
CPLR 3211(a)(7): Motion to Dismiss
for Failure to State a Cause of Action
(Digest – May, 2015)
• Rovello
• Does the Plaintiff Fail to State a Cause
of Action or Simply Have None?
• Use of Affidavits on Motion
– To Remedy Defects in Pleading
– If They Conclusively Establish There
Is No Cause of Action
CPLR 3211(e) / 3025: Preserving
Affirmative Defenses
• In answer or pre-answer motion to dismiss.
• Additional issues re jurisdictional defenses.
• But amendment by leave of court can preserve defense
if no prejudice or surprise from delay and not palpably
insufficient or patently devoid of merit.
Bank of N.Y. Mellon v. Aquino, 131 A.D.3d 1186 (2nd
Dep’t 2016)
Dixon v. Chang, 137 A.D.3d 957 (2nd Dep’t 2016)
• Answer amended as of right to amended complaint can
assert statute of limitations defense previously omitted.
Moezinia v. Ashkenazi, 136 A.D.3d 990 (2nd Dep’t 2016)
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8/3/2016
CPLR 2103 / 2001: Conflict in
Departments as to Whether
Service by a Party is
Jurisdictional Defect
• 2nd & 4th Departments: Jurisdictional
defect
• 3rd Department: Mere irregularity
Neroni v. Follender, 137 A.D.3d 1336 (3d
Dep’t 2016)
• 1st Department: Ruled both ways
Application of CPLR 205(a)
(Digest – July 2016)
• Unavailable when first action dismissed for failure to
comply with RPTL 708(3) mailing requirement.
• Appellate Division – first action dismissed on merits.
• NYCA – Focuses on RPTL §708(3), which
comprehensively addresses issue: thus, resort to
CPLR remedy unavailable
Matter of Westchester Joint Water Works v.
Assessor of City of Rye, 2016 NY Slip Op 04438
(2016)
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8/3/2016
CPLR 214/214-a – Ordinary
Negligence v. Medical Malpractice
“…the allegations in the complaint pertaining to the
number of surgeries Panos was scheduling for any given
day, the allegations that Vassar failed to establish
procedures regarding the number of surgeries that could
be scheduled for a given day, and the allegations that
Vassar failed to investigate or respond to warnings and
complaints from its employees regarding Panos's practices
generally, all sound in ordinary negligence rather than
medical malpractice”.
Piccoli v. Panos, 130 A.D.3d 704, 13 N.Y.S.3d 478 (2d
Dep’t 2015).
CPLR 214-a: Continuous Treatment
Toll in Medical, Dental or Podiatric
Malpractice Action
•
•
•
•
Is it the same condition?
Is it a continuous course of treatment?
Are there gaps in coverage?
Monitoring condition sufficient.
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8/3/2016
CPLR 214-a:
First Department Joins Second Department in
Holding That Wrongful Birth Claim Accrues Upon
Infant’s Birth (Digest – February, 2016)
•
•
•
•
Defendants allegedly failed to do adequate genetic screening of egg donor in
connection with in vitro fertilization. Parents unaware that egg donor was carrier of
Fragile X, a chromosomal abnormality which can produce, particularly in males,
intellectual disabilities and other deficits. Consequently, the child was born impaired.
New York does not recognize “wrongful life” cause of action asserted on behalf of the
infant arising out of his conception and birth.
New York permits a “wrongful birth” claim where the parents can seek recovery of
their past and future “extraordinary financial obligations relating to the care” of that
child during his or her minority.
“Only if there is a live birth will the injury be suffered. Thus, until there is a live birth,
the existence of a cognizable legal injury that will support a wrongful birth cause of
action cannot even be alleged. Without legally cognizable damages, there is no legal
right to relief.”
B.F. v. Reprod. Med. Assocs. of N.Y., LLP, 2015 N.Y. Slip Op. 09370 (1st Dep’t 2015).
CPLR 214-c: Discovery
Statute
• Latent effects
• Generally toxic tort statute
• Symptoms too intermittent and
inconsequential to trigger limitation period
Malone v. Court W. Developers, Inc., 139
A.D.3d 1154 (3d Dep’t 2016)
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