CIVIL PROCEDURE/CORPORATION LAW

 

Individual Defendants' Ties to New York, Including Business Activities in New York, Were Not Sufficient to Afford New York Jurisdiction, Pursuant to CPLR 302,  Over a Lawsuit Stemming from a Personal Injury in New Jersey---CPLR 301, Which Affords New York Courts Jurisdiction Over Corporations Doing Business in New York, Does Not Extend to Individuals Doing Business in New York

 

The Second Department reversed Supreme Court's finding that New York courts had jurisdiction over plaintiff's personal injury action.  Plaintiff was injured by an allegedly defective saw provided by the defendants while doing work for defendants at the defendants' home in New Jersey.  Jurisdiction pursuant to CPLR 302 was lacking because there was no real connection between the the defendants' activities in New York (they ran a church in New York) and the personal injury action.  Jurisdiction pursuant to CPLR 301 was lacking because CPLR 301 does not apply to individuals, as opposed to corporations, doing business in New York:

 

In order to determine whether personal jurisdiction exists under CPLR 302(a)(1), a court must determine (1) whether the defendant transacted business in New York and, if so, (2) whether the cause of action asserted arose from that transaction ... .

 

The Court of Appeals has interpreted the second prong of the jurisdictional inquiry to require that, in light of all the circumstances, there must be an "articulable nexus" ... , between a defendant's in-state activity and the claim asserted ... . Although "causation is not required," the Court of Appeals has stated that "at a minimum [there must be] a relatedness between the transaction and the legal claim such that the latter is not completely unmoored from the former" ... . "[W]here at least one element arises from the New York contacts, the relationship between the business transaction and the claim asserted supports specific jurisdiction under the statute" ... .

 

Here, the relationship between the causes of action asserted in the complaint and the [defendants'] activities within New York were too insubstantial to warrant a New York court's exercise of personal jurisdiction over them pursuant to CPLR 302(a)(1). * * *

 

In contrast to the common-law approach to corporations, the common law, as developed through case law predating the enactment of CPLR 301, did not include any recognition of general jurisdiction over an individual based upon that individual's cumulative business activities within the State ... . Since the enactment of CPLR 301 did not expand the scope of the existing jurisdictional authority of the courts of the State of New York, that section does not permit the application of the "doing business" test to individual defendants ... . Accordingly, contrary to the plaintiff's contention, since the [defendants] were served with process in New Jersey, the Supreme Court was not authorized to exercise personal jurisdiction over them pursuant to CPLR 301, based on their cumulative individual business activities within the State. Pichardo v Zayas, 2014 NY Slip Op 07639, 2nd Dept 11-12-14

 

 

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CIVIL PROCEDURE/FRAUD

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The Proper Vehicle to Address Fraud Which Is Alleged to Have Tainted a Completed Proceeding Is a Motion to Vacate the Judgment, Not the Institution of a New Plenary Action

 

The Second Department noted that the remedy for addressing fraud in a completed action is a motion to vacate the judgment in that action, not a new plenary proceeding:

 

"Generally, a party who has lost a case as a result of alleged fraud or false testimony cannot collaterally attack the judgment in a separate action for damages against the party who adduced the false evidence" ... . The "plaintiff's remedy lies exclusively in that lawsuit itself, i.e., by moving pursuant to CPLR 5015 to vacate the . . . judgment due to its fraudulent procurement, not a second plenary action collaterally attacking the judgment in the original action" ... . Stewart v Citimortgage Inc, 2014 NY Slip Op 07648, 2nd Dept 11-12-14

 

 

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CIVIL PROCEDURE

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Criteria for a Change of Venue Not Met---Party Seeking Change Must First Demonstrate Existing Venue Is Improper

 

Reversing Supreme Court, the Second Department held that defendant's motion to change venue should have been denied.  The court explained the analytical criteria:

 

"In the context of determining the proper venue of an action, a party may have more than one residence" ... . Under CPLR 503(d), the county of an individual's principal office is a proper venue for claims arising out of that business (see CPLR 503[d]...). Here, the plaintiff seeks to recover damages for medical malpractice allegedly committed by, among others, the defendant Jung Lack Lee in his capacity as a medical doctor. Accordingly, the county in which that defendant maintains his principal office is a proper venue in this case.

 

To prevail on a CPLR 510(1) motion to transfer venue, a defendant bears the burden of demonstrating that the plaintiff's choice of venue was improper on the day the action was commenced, and that the defendant's choice of venue is proper (see CPLR 511[b]...). Only if a defendant meets this burden is the plaintiff required to establish, in opposition, that the venue selected was proper ... . Here, the defendants failed to establish that Kings County was improper ... . Accordingly, the Supreme Court should have denied the defendants' motions to transfer venue and granted that branch of the plaintiff's cross motion which was to retain venue in Kings County. Young Sun Chung v Kwah, 2014 NY Slip Op 07656, 2nd Dept 11-12-14

 

 

CIVIL PROCEDURE/ADMINISTRATIVE LAW/ENVIRONMENTAL LAW

 

Four-Month Statute of Limitations Started When Petitioner's Attorney Received the Order, Not When the Order Was Served on Petitioner

 

With respect to an Article 78 proceeding to contest a determination of the Commissioner of the Department of Environmental Conservation, the four-month statute of limitations began when petitioner's attorney received the Commissioner's order, not when the order was served on petitioner.  Matter of Sutherland v New York State Dept of Envtl Conservation, 2014 NY Slip Op 07674, 2nd Dept 11-12-14

 

 

CIVIL PROCEDURE/ADMINISTRATIVE LAW/ENVIRONMENTAL LAW/MUNICIPAL LAW

 

Failure to Bring Timely Article 78 Proceedings to Contest Town Planning Board Decisions Approving Construction of a Condominium Cannot Be Circumvented by Bringing an Action for a Declaratory Judgment

 

The Fourth Department affirmed Supreme Court's finding that the statute of limitations for an Article 78 proceeding contesting the determination(s) of a town planning board cannot be circumvented by bringing an action for a declaratory judgment.  The dispute concerned whether "substantial work" had been commenced on a condominium construction project such that the approval of the project did not terminate automatically due to the passage of time. The planning board had concluded that "substantial work" included efforts to finance the project and was not limited to physical construction:

 

We reject plaintiff's contention that the action was timely and properly brought as a declaratory judgment action pursuant to CPLR 3001. Although a six-year limitations period governs declaratory judgment actions (see CPLR 213 [1]), it is well settled that if such claim could have been brought in another form, then the shorter limitations period applies ... . Here, Town Law § 274-a (11) provides for a 30-day limitations period for challenging "a decision of the [planning] board or any officer, department, board or bureau of the town" under CPLR article 78. Thus, plaintiff's challenge to the Town Code Enforcement Officer's determination of the meaning of "significant work" under Code § 170-94 (J) could have been brought in a CPLR article 78 proceeding under Town Law § 274-a (11). Assuming arguendo, as plaintiff contends, that no administrative appeal from such determination was required or available, the action was not commenced within the 30-day limitations period set forth in section 274-a (11), and the court therefore properly granted defendants' motions to dismiss on that ground ... . Likewise, any challenge to the 2005, 2009 or 2012 Planning Board's actions could have been brought in a CPLR article 78 proceeding, and thus the instant action, even though denominated as one for a declaratory judgment, also was not timely commenced within the 30-day limitations period applicable to each such action of the Planning Board (see Town Law § 274-a [11]; see also Town Law §§ 267-c [1]; 282).

 

We reject plaintiff's further contention that, with respect to the Town Code Enforcement Officer's determination, there was no administrative action and thus "nothing to appeal." Contrary to plaintiff's contention, Code § 170-92 (B) specifically provides for an appeal to the Zoning Board of Appeals where it is alleged that there is an error in any order or decision made by an administrative officer or body in the enforcement of the Code ... . Thus, plaintiff failed to pursue the available administrative appeal ..., and the 30-day period of limitations applicable to judicial review therefrom cannot be circumvented by "the simple expedient of denominating the action one for declaratory relief" ... . Bristol Homeowners Envtl Preserv Assoc LLC v Town of Bristol, 2014 NY Slip Op 07790, 4th Dept 11-14-14

 

CIVIL PROCEDURE/ATTORNEYS

 

Procedure for Handling a Motion to Dismiss for Failure to State a Cause of Action When Documentary Evidence Is Submitted in Support of the Motion Explained---Attorney Discharged For Cause Is Not Entitled to "Quantum Meruit" Attorney's Fees 

 

In affirming the dismissal of plaintiff's complaint, the Second Department explained the relevant analysis when documentary proof is submitted by a defendant in connection with a motion to dismiss for failure to state a cause of action pursunt to CPLR 3211(a)(7).  The action was brought by an attorney who had been discharged for cause by his clients prior to the settlement of a personal injury action:

 

In considering a motion to dismiss a complaint for failure to state a cause of action pursuant to CPLR 3211(a)(7), the court must accept the facts as alleged in the complaint as true, accord the plaintiff the benefit of every possible favorable inference, and determine only whether the facts as alleged fit within any cognizable legal theory ... . Where, however, a defendant has submitted evidence in support of a motion to dismiss pursuant to CPLR 3211(a)(7), and the motion has not been converted into one for summary judgment, the criterion is whether the plaintiff has a cause of action, not whether he or she has stated one, and, "unless it has been shown that a material fact as claimed by the [plaintiff] to be one is not a fact at all and unless it can be said that no significant dispute exists regarding it, . . . dismissal should not eventuate" ... . Dismissal pursuant to CPLR 3211(a)(7) is warranted if the evidentiary proof disproves an essential allegation of the complaint, even if the allegations of the complaint, standing alone, could withstand a motion to dismiss for failure to state a cause of action ... . * * *

 

A client has the right to discharge his or her attorney at any time ... . While an attorney who is discharged without cause before the completion of services may recover the reasonable value of his or her services in quantum meruit, an attorney who is discharged for cause is not entitled to any compensation or lien ... . Here, the court held a hearing pursuant to 22 NYCRR 603.13(b) with respect to the plaintiff's cross motion for attorney's fees. The court determined that the plaintiff was properly discharged for cause, and, therefore, was not entitled to recover in quantum meruit. Siskin v Cassar, 2014 NY Slip Op 07646, 2nd Dept 11-12-14

 

 

CIVIL PROCEDURE/CRIMINAL LAW/CONSTITUTIONAL LAW

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Petition by the District Attorney Against the Sentencing Judge Seeking Vacation of the Sentence Imposed, Because the District Attorney Did Not Agree to It, Dismissed---Granting the Petition Would Direct the Judge to Violate Criminal Procedure law 220.10(4) and Would Violate the Defendant's Protection Against Double Jeopardy

 

The Fourth Department dismissed a petition brought against a judge by a district attorney seeking the vacation of a plea on the ground that the district attorney did not agree to it.  The district attorney argued he had agreed to a six-year sentence, not the five-year sentence imposed by the judge:

 

The extraordinary remedy of mandamus " is never granted for the purpose of compelling the performance of an unlawful act' " ..., and the Court of Appeals has repeatedly held that, after the entry of judgment and the commencement of sentence, courts have no statutory or inherent authority to vacate, over a defendant's objection, a plea taken in contravention of CPL 220.10 or related statutory provisions ... . Indeed, absent extrinsic fraud, "[i]n no instance ha[s the Court of Appeals] recognized a court's inherent [or statutory] power to vacate a plea and sentence over defendant's objection where the error goes beyond mere clerical error apparent on the face of the record and where the proceeding has terminated by the entry of judgment" ... . Thus, mandamus does not lie here because we cannot compel respondent to exceed his statutory and inherent authority by directing him to vacate a plea taken in violation of CPL 220.10 (4) (a) after the commencement of sentence.

 

Furthermore, "restor[ing] the matter to its pre-plea status," as petitioner seeks, would violate defendant's constitutional protections against double jeopardy ... . Contrary to petitioner's contention, CPL 40.30 (3) "does not aid the analysis of the double jeopardy issue" ... . The Court of Appeals has held that a plea taken without the People's consent is not a nullity for purposes of that provision ... .

 

Apart from the legal infirmities of petitioner's position, we further conclude that the record does not factually support that position. Specifically, the record belies petitioner's contention that his consent to defendant's plea was conditioned on the imposition of a determinate, six-year term of imprisonment. Matter of Budelmann v Leone, 2014 NY Slip Op 07797, 4th Dept 11-14-14

 

CIVIL PROCEDURE/EMPLOYMENT LAW/EDUCATION-SCHOOL LAW

 

Procedure for Determining a Pre-Answer Motion to Dismiss a Declaratory Judgment Action Explained

 

In the context of an action for a declaratory judgment concerning the legality of the collective bargaining agreement (re: the waiver of seniority rights), the Second Department explained how a pre-answer motion to dismiss pursuant to CPLR 3211 (a)(7) [failure to state a cause of action] should be considered:

 

A motion to dismiss a declaratory judgment action prior to the service of an answer presents for consideration only the issue of whether a cause of action for declaratory relief is set forth, not the question of whether the plaintiff is entitled to a favorable declaration'" ... . "Thus, where a cause of action is sufficient to invoke the court's power to render a declaratory judgment . . . as to the rights and other legal relations of the parties to a justiciable controversy, a motion to dismiss that cause of action should be denied'" ... . A court may reach "the merits of a properly pleaded cause of action for a declaratory judgment upon a motion to dismiss for failure to state a cause of action where no questions of fact are presented [by the controversy]'" ... . Under such circumstances, the motion to dismiss the cause of action for failure to state a cause of action "should be taken as a motion for a declaration in the defendant's favor and treated accordingly"... .  Bregman v East Ramapo Cent Sch Dist, 2014 NY Slip Op 07610, 2nd Dept 11-12-14

 

 

CIVIL PROCEDURE/MUNICIPAL LAW/ENVIRONMENTAL LAW

 

The Striking Down (by the Court of Appeals) of a Retroactive Zoning Ordinance Which Prohibited the Operation of a Landfill Did Not Require the Striking Down of a Subsequent Health and Safety Regulation Which Had the Same Effect

 

The Fourth Department determined that the striking down (by the Court of Appeals) of a 2005 retroactive zoning ordinance which prohibited the continued use of petitioner's property as a landfill did not require the striking down of a 2007 health and safety regulation which had the same effect.  Because the two regulations are different in nature, the collateral estoppel doctrine is not available:

 

...[W]e agree with defendants that collateral estoppel does not apply here. "The doctrine of collateral estoppel precludes a party from relitigating in a subsequent action or proceeding an issue clearly raised in a prior action or proceeding and decided against that party' " ... . The doctrine "applies only if the issue in the second action is identical to an issue which was raised, necessarily decided and material in the first action' " ... . "The party seeking the benefit of collateral estoppel has the burden of demonstrating the identity of the issues in the present litigation and the prior determination" ... . Here, the issue in this case—the legality of the 2007 Law as applied to plaintiffs—was neither raised by the parties nor decided by the Court of Appeals in Jones I. The issue before the Court of Appeals in Jones I was whether the 2005 Law was constitutional as applied to plaintiffs, i.e., whether the 2005 Law extinguished plaintiffs' legal use of their land for the purpose of operating a C & D landfill on the entire parcel (see Jones I, 15 NY3d at 145-146). The Court of Appeals held that "the zoning ordinance at issue in this case [i.e., the 2005 Law], which restricted the development of landfills, does not apply to plaintiffs because they acquired a vested right to use their 50-acre parcel as a landfill for construction and demolition debris before the enactment of the zoning law" (id. at 142 [emphasis added]).

 

Although the 2005 Law and the 2007 Law both regulate landfill operations, they are not identical. The 2005 Law amended the Zoning Law to eliminate sanitary and demolition landfills as a permitted use in the AR-1 zoning district. The 2007 Law did not amend the Zoning Law to eliminate landfills in a particular zoning district but, rather, it enacted a Town-wide ban on solid waste management facilities. In concluding that the 2005 Law did not apply to plaintiffs, the Court of Appeals relied upon its [prior] decisions... . Those cases involve the nonconforming use doctrine, which shields vested property rights from the retroactive effect of zoning ordinances... .

 

The 2007 Law, however, is a health and safety regulation, not a retroactive zoning ordinance ... . Unlike the 2005 Law, the 2007 Law does not "regulate[] the location of certain facilities within particular zoning districts" but, rather, it "generally regulat[es] the operation of [solid waste management] facilities in the interest of public safety and welfare" ... . It is well established that "a municipality has the authority, pursuant to its police powers, to impose conditions of operation . . . upon preexisting nonconforming uses to protect public safety and welfare" (id.) and "may even eliminate [a] nonconforming use provided that termination is accomplished in a reasonable fashion" ... . Jones v Town of Carroll, 2014 NY Slip Op 07780, 4th Dept 11-14-14

 

 

CIVIL PROCEDURE/MUNICIPAL LAW

 

Town Board Is Not a Necessary Party In an Action Against the Town---Acts of the Town Board Under Statutory Authority Are the Acts of the Town---Court's Power to Join a Necessary Party Sua Sponte Noted (Not Properly Exercised Here)

 

The Second Department explained that, in a declaratory judgment action against a town challenging a local law, the town board is not a necessary party:

 

A "court may at any stage of a case and on its own motion determine whether there is a nonjoinder of necessary parties" ... . "In a matter seeking a declaratory judgment challenging a legislative act, the legislative body that enacted the challenged law or ordinance is a necessary party" ... .

 

In this declaratory judgment action against the Town of Huntington, challenging a Local Law enacted by the Town Board of the Town of Huntington (hereinafter the Town Board), the Supreme Court, sua sponte, directed the joinder of the Town Board as a defendant on the ground that it is a necessary party without which the action cannot proceed. However, a town board "shall be vested with all the powers of such a town" (Town Law § 60[1]) and "cannot and does not exist separately and independently from the town of which it is the governing body . . . [T]he acts of a town board when performed under statutory authority are the acts of the town" ... . Accordingly, as the Town is a party defendant in this action, it was unnecessary for the court to have directed the joinder of the Town Board as a defendant ... . Dish Realty LLC v Town of Huntington, 2014 NY Slip Op 07616, 2nd Dept 11-12-14

 

 

CIVIL PROCEDURE/PRIVILEGE/CRIMINAL LAW/EVIDENCE

 

Statements Made by Defendant to Physician In Presence of Police Investigator Not Privileged

 

The Fourth Department determined the physician-patient privilege did not protect statements made by the defendant to the doctor while a police investigator was in the room:

 

We reject defendant's contention that Supreme Court erred in allowing a medical professional to testify to statements defendant made to her while being examined at the hospital after his arrest. Defendant contends that his statements were subject to the physician-patient privilege despite the presence of a police investigator in the examination room because he was in custody and was not able to tell the investigator to leave the room. The physician-patient privilege, which is "entirely a creature of statute" .., is set forth in CPLR 4504 (a), and is applicable to criminal proceedings by virtue of CPL 60.10 ... . In determining whether the physician-patient privilege applies, we must consider "whether in the light of all the surrounding circumstances, and particularly the occasion for the presence of the third person, the communication was intended to be confidential" ... . Here, we conclude that defendant did not meet his burden of establishing that the privilege applied ... , because there was no showing that he intended that his statements be confidential. Defendant was aware of the investigator's presence, but he did not ask to speak with the medical professional privately. Additionally, defendant made numerous statements to others that were similar to the statements he made to the medical professional, both before and after making them to her. People v Hartle, 2014 NY Slip Op 07812, 4th Dept 11-14-14

 

CIVIL PROCEDURE/PRIVILEGE/APPEALS

 

Inadvertently Disseminated Investigative Report [Concerning a Doctor's Conduct With Respect to Plaintiff's Decedent] Generated by the Office of Professional Medical Conduct Is Not Discoverable---Matter Must Be Returned to the "Status Quo Prior to the [Inadvertent] Disclosure"

 

In a wrongful death action, the Fourth Department determined that a report generated by the Office of Professional Medical Conduct (OPMC) concerning an investigation into decedent's death was not discoverable pursant to the Public Health Law and a protective order pursuant to CPLR 3103 should have been granted in its entirety. The report was inadvertently disclosed by the plaintiff to all the defendants.  Supreme Court ruled only that the report could not be further disseminated.  The Fourth Department noted that Supreme Court's order was appealable pursuant to CPLR 5701(a)(20(v) even though the denial of the motion for a protective order was without prejudice to renew:

 

...[W]e conclude that Supreme Court erred in granting defendants' motion only in part, and should have granted the motion in its entirety. "Pursuant to Public Health Law § 230 (10) (a) (v), the files of OPMC concerning possible instances of professional misconduct are confidential, subject to [certain] exceptions," including Public Health Law § 230 (9), which are not applicable here ... . Inasmuch as there is no evidence in the record that the OPMC proceeded past the interview phase of [the doctor's] alleged misconduct with respect to decedent, the OPMC report is not discoverable as a matter of law (see § 230 [10] [a] [v]). Thus, we conclude that the court erred in failing to restore this matter to the "status quo prior to the[inadvertent] disclosure"... . Kirby v Kenmore Mercy Hosp, 2014 NY Slip Op 07804, 4th Dept 11-14-14