Noteworthy CPLR decisions, available on the Worldwide Web
Last update 03/09/01
March, 2001 Cases Listed in reverse chronological order
Ingber v. Harrah's Atlantic City, United States District Court for the Eastern District of New York, NYLJ 3/9/01, Judge Sifton. PERSONAL JURISIDCTION. New York residents sued Harrah's Atlantic City, a New Jersey partnership, for damages suffered as a result of a plaintiff's collision with a Harrah's security guard while plaintiff was a guest at defendant's hotel and casino. Defendant moved to dismiss the complaint for lack of personal jurisdiction, among other things. Plaintiffs argued that jurisdiction is proper over defendant in New York because it advertises and makes promotional offers by mail and a subsidiary of its parent corporation maintains an office in New York to solicit business for it and other Harrah's hotels. The court denied defendant's motion, finding that defendant had sufficient minimum contacts with New York to support the exercise of jurisdiction pursuant to Civil Practice Law and Rules §301 since it, among other things, allegedly solicited plaintiffs for the promotional vacation at issue and regularly contacted New York regarding this type of business.
187 Concourse Associates v. Reliance National Indemnity Co., Supreme Court, New York County, NYLJ 3/9/01, Justice Gammerman. SANCTIONS. Defendant moved for leave to renew prior motions for sanctions. This motion came in the wake of three actions filed by plaintiff, all pertaining to the same claim. The first action was for breach of contract, in which plaintiff made a claim for losses allegedly sustained when a wall collapsed in a building. This complaint was dismissed because plaintiff failed for almost two years to comply with discovery orders. A second action was filed for the same loss in New York County. Prior to a pretrial conference, a third action was filed. Plaintiff's attorney claimed that the second action had been erroneously filed in New York County and that Bronx County was the proper venue.The actions were dismissed. The court found that plaintiff's frivolous conduct prolonged litigation, and it directed sanctions in the amount of $10,000 be paid to defendant's attorney.
Hennigan v. Taser International Inc., United States District Court for the Southern District of New York, NYLJ 3/8/01, Judge Mukasey. PERSONAL JURISDICTION. A federally licensed firearms dealer and New York resident sued for damages arising out of alleged termination of his distribution agreement with defendant Arizona corporation, which markets and manufactures a non-lethal self-defense device. The court disagreed with plaintiff's argument that that defendant is subject to jurisdiction under §301 of the Civil Practice Law and Rules as a corporation "doing business" in New York and granted defendants' motion to dismiss for lack of personal jurisdiction. The court found that plaintiff failed to show defendant's "continuous and systematic" contacts with New York. The court also disagreed with plaintiff's argument that defendant is subject to personal jurisdiction under §302(a)(1), finding, among other things, that although defendant's other New York activities relate to business transacted in New York, none of plaintiff's claims arose from these activities.
SI Bank & Trust as Trustee v. Department of Health of the City of New York, Supreme Court, Richmond County, NYLJ 3/8/01, Justice Lebowitz, A. STATUTE OF LIMITATIONS. Petitioner sought review of a determination by respondent, the Department of Health, and to annul its determination. The DOH argued that the petition was barred by the four-month Statute of Limitations. The DOH argued that its determination became final upon petitioner's receipt of an initial charge. Petitioner asserted that the determination was final when he received a letter stating that the DOH had found him liable for clean-up work it had performed. Looking to the letter, the court found that the DOH had used language that created confusion, and led petitioner to believe that the DOH's determination became final when he received the letter. Accordingly, the court found that the petition was timely. After review, the court annulled the DOH's determination finding that it was made in violation of lawful procedure, and was affected by an error in law.
Weinberg v. Newman & Leventhal of Manhasset Inc., Supreme Court, Nassau County, NYLJ 3/6/01, Justice Austin. CONSOLIDATION. Petitioner commenced the instant action seeking a judicial dissolution of respondent company, pursuant to Business Corporation Law §1104-a. At the time this proceeding was commenced, petitioner also filed a shareholder derivative action against the individual respondents, in a separated action venued in Nassau County. Petitioner is now seeking to consolidate the two matters. Petitioner averred, and it was not disputed, that both proceedings involved common questions of law and fact. The court found that respondents had not claimed any prejudice that would arise upon consolidation, nor did the court perceive any prejudice to respondents. Thus, using its discretion, the court concluded that joinder of the two matters was appropriate. The court also found that Nassau County was the proper venue for the consolidated proceedings.
Sullivan v. Liapakis, Supreme Court, Nassau County, NYLJ 3/2/01, Justice Austin. VENUE. On July 12, 1999, an action was commenced in New York County by defendant against plaintiffs for breach of a resignation agreement, tortious interference with prospective economic advantage and defamation. On April 11, 2000, plaintiffs commenced the instant action in Nassau County, seeking a judgment declaring the rights, interests and claims of defendant relative to the agreement and damages for breach of contract. Defendant has now moved for an order changing venue of the instant action to New York County. The court found that the interest of judicial economy and avoidance of inconsistent decisions between the parties warranted a change of venue to New York County so that both actions could proceed in tandem. The court said that this was consistent with the policy of simplifying and facilitating litigation and to "secure the just, speedy and inexpensive determination of every civil judicial proceeding."
Runko v. Technibilt Ltd., Supreme Court, Rockland County, NYLJ 3/1/01, Justice Dillon. CROSS-CLAIM. At an A&P store, an infant plaintiff was caused to fall from a shopping cart allegedly manufactured by codefendant company. Plaintiffs commenced an action for personal injuries allegedly sustained by the infant plaintiff. In its answer, defendant A&P asserted a single cross-claim against codefendant company alleging that if a verdict was recovered against A&P, then it should be entitled "on the basis of apportionment of responsibility for the alleged occurrence ... to contribution and/or indemnification from the [codefendant]." The court found that the language in the cross-claim made no reference whatsoever, expressly or by inference, to contractual obligations between the parties, that such contractual obligations had been breached nor that any damages resulted from such a breach. Accordingly, the court denied A&P's motion.
February, 2001 Cases Listed in reverse chronological order
Campbell v. Metropolitan Property and Casualty Insurance Co., Second Circuit Court of Appeals, NYLJ 2/27/01, Judge Kearse. INTEREST. Defendants/ insurance companies appealed from a district court judgment that awarded plaintiffs $300,000 on an insurance policy covering bodily injury, plus prejudgment interest, finding that plaintiff's children suffered injuries from exposure to lead paint during the policy period. Plaintiff's children had tested positive for high lead levels, allegedly due to cracked, chipped and peeling lead-based paint in their Bronx apartment. Defendants contended, among other things, that the court erred in awarding prejudgment interest. The instant court affirmed the finding of liability but reversed the award of prejudgment interest, finding that prejudgment interest is only recoverable in certain types of actions. The court found that personal injury actions such as this one are not mentioned in §5001(a) of the Civil Practice Law and Rules.
Uprose v. New York Power Authority, Supreme Court, Kings County, NYLJ 2/27/01, Justice Knipel. VENUE. In a proceeding to review respondents' determinations allowing for the construction and operation of 10 natural gas turbine generators in New York City, respondent Siting Board and chairman moved to change venue of the proceeding to Supreme Court, Albany County. Respondents, the Department of Environmental Conservation and commissioner and the New York Power Authority supported the motion and "joined" in it. The court denied the motions of the NYPA and DEC to change venue. As for the Siting Board, the court stated that it was correct in arguing that the proper venue for a proceeding seeking review of its determination was in Albany County. However, in the interest of judicial economy and to minimize the possibility of conflicting results, the court held that venue of the entire proceeding would remain in Kings County.
Casciani v. Pruett, U.S.District Court for the Western District of New York, NYLJ 2/26/01, Judge Siragusa. PERSONAL JURISDICTION. New York resident alleged that, while guests aboard a boat owned and operated by defendants/Tennessee residents, she fell through an open hatch and injured her ankle. At the time of the incident, the boat was docked at a Tennessee marina. Plaintiffs had filed suit in New York and Tennessee, but claimed that the case can no longer be brought in Tennessee because the statute of limitations there had already run. The court dismissed the case for lack of personal jurisdiction, finding that plaintiff submitted no evidence to establish personal jurisdiction over defendant Jeanne Pruett, a Grand Ole Opry star. The court noted that although defendant's recordings have been sold in New York, plaintiffs failed to show that she herself regularly does or solicits business here or derives substantial revenue from goods used or consumed here.
Battista v. Locascio,Civil Court, Richmond County, NYLJ 2/26/01, Judge Straniere.SMALL CLAIMS. Three small claims actions arose out of the same factual occurrence. In two of the actions, claimant sued defendant, her current husband, for damage to her personal property, and for monies she allegedly paid on behalf of defendant during their marriage. Claimant stated that she was still married to defendant but was seeking to have their marriage annulled. Noting that an annulment was a matrimonial action, the court stated that under the New York Constitution only the Supreme Court had jurisdiction to entertain an action to annul a marriage, and as such it was proper for that court to resolve any property disputes. After reviewing the other claim, the court found that claimants tried to split one cause of action into smaller suits in order to qualify as a small claims action. The court dismissed the actions, without prejudice to renew in the Supreme Court.
Demarco v. County of Suffolk, Supreme Court,Suffolk County, NYLJ 2/22/01, Justice Underwood. ARBITRATION. Petitioner president of the Suffolk County Sheriff's Benevolent Association Inc. sought to vacate an arbitration award. An arbitrator ruled in part that alcohol testing shall be part of the Suffolk County's random drug testing program for on-duty deputy sheriffs. The basis for the arbitrator's jurisdiction arose from a stipulation entered into by the parties. Petitioner argued that the arbitrator was limited to the narrow question of whether the deputy sheriff's agreement would be amended to include random drug testing only. The court found that petitioner actively participated in the year-and-a-half-long arbitration process, instead of seeking a judicial determination as to whether respondents were raising nonarbitrable claims. Thus, the court concluded that petitioner could not now seek court intervention to determine the arbitrator's authority.
Jarrett v. Backilman, Nassau, Supreme Court, Nassau County, NYLJ 2/21/01, Justice Joseph. CONSOLIDATION. Plaintiffs and defendant entered into a lease agreement. The agreement contained an option to purchase the subject property, which required notification to defendant by a certain date. Plaintiffs missed the deadline and belatedly notified defendant of their intention to purchase the property. Defendant declined the offer as untimely. Plaintiffs commenced the instant action seeking specific performance of the agreement. Defendant instituted a holdover landlord-tenant proceeding in District Court, Nassau County. Plaintiffs have moved for an order staying the District Court's holdover proceedings, or in the alternative, for an order consolidating the instant action with the District Court matter. In the interests of justice and judicial economy, the court ordered that the proceedings in the District Court be removed and consolidated with the instant action.
DFJ Capital Corp. v. Bluestein, Supreme Court, New York County, NYLJ 2/15/01, Justice Lehner. STATUTE OF LIMITATIONS- RELATION BACK. Plaintiff capital corporation brought suit against defendants, a law firm and two attorneys. Plaintiff is now seeking to amend the complaint to add another claim. It was acknowledged that the amended claim would be time barred unless Civil Practice Law and Rules 203(f) was applicable. After comparing the original complaint and the proposed amended complaint, the court found that the original complaint only asserted negligence by defendants in representing plaintiff, whereas the new claim sought to assert an "alternative" claim that defendants assumed a different duty. The court noted that plaintiff was seeking to allege new facts to assert this additional duty. After reviewing the "relation back" principle, the court concluded that the proposed new claim was not entitled to the benefit of CPLR 203(f), and denied plaintiff's motion to amend.
Lockwood v. Suffolk County Police Department, Supreme Court, Suffolk County, NYLJ 2/14/01, Justice Dunn, JJ. DISCOVERY- POLICE RECORDS. Petitioner was an attorney who represented a plaintiff in a civil action, arising out of an assault upon him by a defendant. The assault was allegedly captured on videotape. The tape was released to the Suffolk County Police on the condition that it be returned after the prosecution of the defendant. However, when the action was concluded, the tape was not returned. Petitioner made a formal request to the police department, but it denied the request on the ground that the records were sealed. Petitioner initiated the instant proceeding. The court said that it did not have sufficient information to be able to state that the tape was integral to the prosecution of the defendant, which would make it subject to sealing. It found that the tape was not part of the "official" record of the criminal action, and directed the police department to release it to petitioner.
Banegas v. Five Countries Carting Recycling Corp., Supreme Court, Kings County, NYLJ 2/14/01, Justice, Schmidt, D. DISCOVERY-DEPOSITIONS. Plaintiff commenced a negligence action after he was allegedly injured by a trash recycling machine during the course of his employment with third-party defendant company. Plaintiff has now moved for an order compelling disclosure. Plaintiff explained that in seeking pre-action discovery, he took the deposition of a principal of the third-party defendant. He is now seeking an order permitting the use of that deposition. Defendants argued that since they did not have the opportunity to cross-examine the principal, it would be inappropriate to permit the use of the deposition. Plaintiff maintained that, as an adversely interested party, he could use the deposition. He also noted that the principal was incarcerated, thus establishing the need for such testimony. Looking to Civil Practice Law and Rules 3117(a)(2), the court permitted plaintiff to utilize the deposition.
State-Wide Insurance Co. v. Dimarzo, District Court, Nassau County, NYLJ 2/13/01, Judge Gartner. CALENDAR PRACTICE. Plaintiff-insurer sought to recover monies it had paid to defendant under an insurance policy. On Sept. 4, 1999, defendant served a notice for discovery. On Oct. 2, 2000, the court granted summary judgment in favor of plaintiff, but it was limited. On Nov. 13, 2000 plaintiff represented that discovery proceedings had been completed, and the case was ready for trial. On Nov. 16, 2000, defendant filed the instant motion seeking to strike the case from the trial calendar, because plaintiff's representation regarding the completion of discovery was untrue. On Dec. 13, 2000, plaintiff belatedly served a response to defendant's demand, but it protested eleven items. In light of the fact that plaintiff's certification untruthfully recited that discovery had been completed, and that discovery requests were reasonable and proper, the court granted defendant's motion.
Felder v. R and K Realty,Supreme Court, Richmond County, NYLJ 2/9/01, Justice Lebowitz, A. STATUTE OF LIMITATIONS- RELATION BACK. In a personal injury action, plaintiff sought damages for injuries she allegedly sustained when she fell out of an allegedly defective window at the subject premises. Plaintiff has now moved to amend her complaint to add as a defendant, the corporation who owned the premises. Plaintiff argued that since the named individual defendant was the president of this corporation, the "relation back" doctrine applied and the complaint may be amended despite the expiration of the Statute of Limitations. The court disagreed, finding that the corporation and the individual defendant were not united in interest. Moreover, the court stated that the corporation's name as the premises' owner has been public record since 1996, and plaintiffs had offered no explanation as to why they waited more than three years to assert a cause of action against the corporation.
Portfolio Recovery Associates v. Shebshaievitz, Civil Court, Kings County, NYLJ 2/6/01, Judge Silber. ENFORCEMENT OF JUDGMENT. The wife of a judgment-debtor, moved pursuant to CPLR 5239 to vacate a restraining notice placed by plaintiff upon her joint bank account with her husband. The court noted that plaintiff had to bring a turnover proceeding pursunt to CPLR 5225(b). However, debtor's wife did not want to wait for such a proceeding, because she had borrowed the money in the joint account and was paying interest on the loan, while the funds were frozen. The court found that since the wife was not a party to the underlying action, she had no standing to make this motion. The court noted that there was no time requirement for a turnover proceeding under CPLR 5225(b) and this could be a hardship, as in the instant case, for someone who owned property with a judgment-debtor. Thus, the court pointed out that the law should be amended to require a creditor to bring a turnover proceeding within 90 days or so of a restraining notice.
Incorporated Village of Hempstead v. Jablonsky, Nassau, Supreme Court, Nassau County, NYLJ 2/6/01, Justice Skelos. VACATING DEFAULT. Plaintiff ,the Village of Hempstead, commenced an Article 78 proceeding against the Sheriff of Nassau County. In executing warrants of eviction, the Sheriff would remove a tenantÓs possessions and place them at the curbside adjacent to the subject premises. The Village claimed that this practice violated §116-6 of the Code of the Village of Hempstead. The Village also moved for a preliminary injunction. The assigned deputy county attorney failed to answer the complaint and to oppose the motion. A default judgment was entered and the injunction was granted. The Sheriff has now made a motion to vacate the default judgment and to excuse the failure to serve opposition to the preliminary injunction motion. After examining the case and noting that the issues involved were of great public concern, the court granted the SheriffÓs motion.
Elrac Inc. v. McDonald, Supreme Court, Nassau County, NYLJ 2/2/01, Justice Palmieri. NOTICE TO ADMIT. In an indemnification action, plaintiff car rental company and defendant customer disputed the weight to be given to defendant's response to plaintiff's notice to admit, which was answered by defendant's attorney. After reviewing the relevant statutory law, commentaries and case law, the court concluded that an attorney should only be permitted to answer a notice to admit, if the attorney had knowledge of the facts or if the answers were based on documentary evidence. In this case, the court found that neither the answering papers, nor the response to the notice gave any basis for the attorney's response, or any reasons why the response was not made by the party. Thus, the response was considered a nullity. Upon further examination, the court awarded plaintiff judgment on its cause of action for contractual indemnification.
Samson Moving and Storage Corp. v. Drake Business School, Civil Court, New York County, NYLJ 2/1/01, Judge Billings. JUDICIAL NOTICE. In a breach of contract action, plaintiff company served a summons and complaint on defendant, Drake Business School, pursuant to the provisions governing service on a natural person. Plaintiff moved for a default judgment. It did not confer jurisdiction over defendant as a corporation, partnership or an unincorporated association. Looking to the data base of the New York State Department, the court found that defendant has been an active business corporation, and registered with the department since April 30, 1970. The court concluded that it would be unreasonable to ignore this fact, which was in an official, published record, solely because no party produced that evidence. Thus, the court took judicial notice of the facts in this data base. Based on this evidence, the court denied plaintiff's motion, since it did not properly serve defendant corporation.
Guzman v. American Ambulette Corp., Supreme Court, Kings County, NYLJ 2/1/01, Justice Rivera, R. EVIDENCE. At the comencement of a jury trial, on the issue of damages, in a personal injury action, plaintiff, a native of Guatemala, moved to preclude defendants from informing the jury of plaintiff's undocumented immigrant status in the United States. Defendants opposed, arguing that plaintiff's undocumented status was relevant to the issue of plaintiff's ability to earn future wages in this country. The court noted that defendants had to demonstrate with concrete evidence that plaintiff's deportation was imminent and not just speculative. The court found that defendants had not offered proof that deportation proceedings had either begun or were in the process of beginning. The court found that there was no indication that plaintiff was hiding from the authorities, planning to leave the U.S. or in danger of being deported. Plaintiff's motion was granted.
Vale v. Seyburn, Supreme Court, New York County, NYLJ 2/1/01, Justice Shafer. DISCOVERY-DEPOSITIONS. Plaintiff and her husband brought a medical malpractice action. Plaintiff was deposed on three separate occasions. Subsequently, defendants served a notice that they possessed a surveillance tape of plaintiff's activities. Prior to releasing the videotape, defendants requested an additional deposition. The court noted that plaintiff and her husband were deposed numerous times and were questioned extensively about the nature of her physical injuries and limitations. Thus, the court stated that it would not permit defendants to subject plaintiff to a fourth deposition, unless they made a sufficient showing that plaintiff's prior examinations before trial did not sufficiently cover the issues raised by the surveillance tape. Defendants were ordered, in part, to produce copies of all surveillance materials, together with the transcript of the prior depositions.
January, 2001 Cases Listed in reverse chronological order
Premium Risk Group Inc. v. Legion Insurance Co., Supreme Court, Nassau County, 1/30/01, Justice Austin. FORUM SELECTION CLAUSES. An action arose out of a shareholders agreement. Defendant foreign companies have now moved to dismiss plaintiff's complaint, on the ground that the instant court lacked jurisdiction over the subject matter, and lacked personal jurisdiction over the moving defendants. The main issue in this motion concerned the validity and enforceability of the forum selection clause in the shareholders agreement. The clause stated that any dispute concerning the agreement would be resolved exclusively by the courts of Bermuda. Plaintiffs argued that defendants had waived their jurisdictional arguments by moving to consolidate the instant action with another, and by participating in the defense of the action. Looking to the relevant case law on forum selection clauses, the court disagreed with plaintiffs' argument. Defendants' motion was granted.
Rice v. Yonkers Contracting Co. Inc., Supreme Court, Westchester County, NYLJ 1/29/01, Justice Lefkowitz, Joan. DISCOVERY. Plaintiff was injured as a result of an incident that occurred on March 31, 1995, and has not worked since that date. Plaintiff lost earnings totaling about $2.5 million. Defendant company is now seeking to have plaintiff examined by a vocational rehabilitation expert, although plaintiff had not retained such an expert on his behalf. The court noted that plaintiff had not alleged any prejudice that would occur by reason of this examination. It also stated that the circumstances of this case, "require[d] that defendant be able to preliminarily discover the truth of plaintiff's inability to work." Considering these facts and several cases, the court held that plaintiff could be examined by the expert. With respect to the request for copies of videotapes and photographs of plaintiff's wedding and vacation trip, the court found that these items were discoverable.
Anderson v. Seigel, Supreme Court, Kings County, NYLJ 1/24/01, Justice Barron. DISCOVERY-PROTECTIVE ORDERS. Plaintiff infant, by her mother, commenced an action seeking damages for injuries allegedly sustained by the infant, as a result of exposure to lead paint. It was alleged that the infant suffered various injuries, including short attention span and various speech and cognitive deficiencies. Plaintiff has now moved for a protective order pursuant to CPLR 3103, denying the request by defendant landlord and third-party defendant New York City Housing Authority, for an IQ test of the infant's mother. The court found that a doctor's affidavits, submitted by defendants, were insufficient to provide a basis to compel the infant's mother to undergo an IQ test. The court stated that, while the doctor cited to and identified three independent scientific studies, his references were vague and completely lacking in any probative factual analysis. The court granted plaintiff's motion.
Singh v. New York City Board of Education, Civil Court, Kings County, NYLJ 1/23/01, Judge Rubin. SEVERANCE. Plaintiff commenced an action, seeking to recover damages for personal injuries allegedly sustained in a trip-and-fall accident at a construction site. Plaintiff's complaint alleged negligence against several defendants, including a warehousing company. At the time of the accident, plaintiff was working at the site as a sheetrocker. In the instant proceeding, fourth third-party defendants, which were two insurance companies, moved for an order pursuant to CPLR 1010 severing the action of fourth-party plaintiff, the warehousing company. The insurance company argued that the action involving these parties concerned insurance coverage issues. The court agreed, finding that the warehousing company was trying to determine if it was covered by the relevant policies and these issues lacked a common question of law or fact to the main action. The motion to sever was granted.
Marden, Harrison & Kreuter,Certified Public Accountants PC v. CCS International Ltd., STATUTE OF LIMIATIONS. Civil Court, New York County, NYLJ 1/22/01, Judge Billings. Plaintiff commenced an action to recover fees for accounting services. Defendant counterclaimed for damages caused by plaintiff's failure to return defendant's books and records. Plaintiff moved to dismiss the counterclaim as time barred. Defendant argued that the withholding violated plaintiff's contractual obligations, thus a six-year statute of limitations applied. Plaintiff argued that the withholding, if unlawful, constituted malpractice, to which a three-year statute of limitations applied. The court found that the wrongful retention of records and the damages incurred constituted conversion, to which a three-year statute of limitations applied. It also found that the proffered evidence did not permit resolution of the factual dispute, which would determine when the limitations period began for the counterclaim. Plaintiff's motion was denied.
Curci v. Methodist Hospital, Supreme Court, Kings County, NYLJ 1/19/01, Justice Goldberg, R. STATUTE OF LIMITATIONS- UNITY OF INTEREST. Plaintiff brought a medical malpractice action, seeking damages for alleged personal injuries. Defendant doctor has now moved for summary judgment, arguing that the relevant Statute of Limitations accrued on May 12, 1993, and he was not served until Dec. 23, 1999. Plaintiff argued that defendant was added as a party by the instant court's prior order, and service was effectuated pursuant to Civil Practice Law and Rules 203(b). Defendant argued that the order deprived him of an absolute defense to the litigation before he was a party to the action and before the court had jurisdiction over him. He also argued that plaintiff failed to establish "unity of interest" supporting the application of CPLR 203(b). The court agreed with defendant, and found that there was no "unity of interest" between defendant and another named defendant.
In Matter of Rodriguez, Supreme Court, New York, NYLJ 1/18/01, Justice Schlesinger. FORUM NON CONVENIENS. A dispute arose between petitioner and respondent his former wife. Petitioner asked the instant court to declare that he had 50 percent ownership rights in a foreign limited liability company for a winding up of the company's affairs and for a dissolution of the company. Respondent moved to dismiss, arguing that since the company was a foreign corporation it could not be dissolved pursuant to Business Corporation Law §1104, and because of principles of forum non conveniens. The court found that respondent failed to show that New York was an inappropriate forum. However, the court found that it only had jurisdiction to declare a judgment as to the company's rights of ownership, and perhaps order a winding up of affairs, and if called for, order that dissolution papers be filed in the country of incorporation. Respondent's motion to dismiss was denied.
Rodriguez v. Circus Circus Casinos Inc., United States District Court for the Southern District of New York, NYLJ 1/17/01, Judge Lynch. PERSONAL JURISIDICTION. New York resident sued Nevada casino and Nevada web site company for an injury he suffered after falling in a Las Vegas casino. The court granted defendants' motion to dismiss for lack of personal jurisdiction, finding that the casino, among other things, displayed no systematic and continuous business conduct in New York. The court noted that although the extent of plaintiff's injuries only became evident once he returned to New York, any injuries he suffered were effected in Las Vegas. The court added that plaintiff also had no jurisdiction over the other defendant, a company that operates a web site accessible in New York, with which plaintiff made his hotel reservation. The court found no difference between using the internet to make a reservation with an out-of-state entity and placing a telephone call to that entity for the same purpose.
McCluskey v. Ferriter, Supreme Court, New York County, NYLJ 1/12/01, Justice Crane. TRIAL DEFAULT. A motion was made to vacate a previous dismissal of plaintiffs' medical malpractice complaint, due to the refusal of counsel to proceed to trial. The court noted that plaintiffs were required to demonstrate a reasonable excuse for the refusal, merit to their case, lack of prejudice to defendants and the absence of an intent to abandon the matter. After reviewing the facts of the case, the court found that plaintiffs' excuse for the default was inadequate; plaintiffs' counsel failed to show a lack of intent to abandon the matter; and plaintiffs utterly overlooked the element of prejudice to defendant. The court stated that it was sensitive to the position that plaintiffs' counsel had placed them in, but its sensitivity was overborne by a public policy that it was obligated to enforce. Accordingly, the court denied plaintiffs' motion to vacate the dismissal.
Lamendola v. Sebastian Mossa & S. Mossa Agency Inc., Civil Court, Queens County, NYLJ 1/11/01, Judge Walker. STATUTE OF LIMITATIONS. Plaintiff commenced an action against defendant insurance brokers, alleging causes of action for negligence, breach of contract and fraud. Defendants have now moved to dismiss the complaint, based on a statute of limitations defense. The court noted that it was now established that an action against an insurance broker, whether the theory alleged is negligence or breach of contract, is a malpractice action, governed by the three-year statute of limitations. The court stated that the novel question raised by this case was whether the "continuous treatment" doctrine was applicable to actions against insurance brokers. In this case of first impression, the court found that the facts of the instant case made it appropriate to invoke the doctrine and extend the limitations period. Accordingly, defendants' motion to dismiss was denied.
Landow & Landow Architects PC v. Shorefront Jewish Geriatric Center Inc., Supreme Court, Nassau County, NYLJ 1/11/01, Justice O'Connell. STATUTE OF LIMITATIONS. A dispute arose concerning the construction of a geriatric residence. Petitioner, an architectural firm, brought an application to permanently stay arbitration demanded by respondent geriatric center. Petitioner claimed that the arbitration of the potential claims was barred by the appropriate Statute of Limitations. Respondent argued, in part, that petitioner had provided continuing services to respondent relating to alleged building defects, and thus this continuing relationship extended the Statute of Limitations. The court found that respondent's contact with petitioner, regarding the construction problems, was intermittent and not intended to oblige petitioner to correct the alleged problems. The court also found that there was not a showing that the alleged problems were hidden or concealed by petitioner. Thus, petitioner's application was granted.
Hsin Ten Enterprise USA Inc. v. Clark Enterprises, United States District Court for the Southern District of New York, NYLJ 1/8/01, Judge Scheindlin. PERSONAL JURISDICTION. Plaintiff New York corporation owns the "The Chi Machine" trademark and markets and sells an "electronic massage apparatus" bearing that mark. Defendant Kansas company began marketing an aerobic exercise machine called "The Chi Exerciser 2000." Plaintiff asserted patent and trademark infringement claims and defendants moved to dismiss for lack of personal jurisdiction, among other things. Plaintiff said that defendants transacted business in New York since they sold the machines in New York via Web sites. The instant court agreed, noting that an interactive Web site supports personal jurisdiction, finding that defendants' Web sites are interactive in that they enable the viewer to purchase the machine, download an order form and application to become an "independent affiliate" and ask questions of an on-line representative.
Major SRL v. Dahlquist, Civil Court, New York County, NYLJ 1/8/01, Judge James. DEFAULT JUDGMENT. Plaintiff, an Italian fashion-model-managing company, filed suit claiming that defendant fashion model agency, tortiously interfered with plaintiff's exclusive management agreement with codefendant fashion model, inducing her to breach the contract. Defendants sought to dismiss their codefendant's answer and cross-claims since she failed to answer the complaint within a year of service. Defendants maintained that since plaintiff did not move within that year for a default judgment against the codefendant, as required by Civil Practice Law and Rules §3215(c), the action against her should be dismissed. The court looked to CPLR §3215 and found that defendants' had accurately quoted the statute. However, the court found that the codefendant's belated service of her answer constituted a waiver of right to dismissal.
Hafkin v. North Shore University Hospital, Appellate Division Second Department; NYLJ 1/2/01, Before: Before Ritter, J.P.; Thompson, Krausman, Florio and Schmidt, JJ. -CPLR 306-B- Plaintiffs brought a medical malpractice action. They commenced their action one day before the expiration of the statute of limitations by filing a summons and complaint. The defendant was never served in that action. Eight months later, the plaintiff commenced a second action by purchasing another index number and filing a second summons and complaint. This second summons and complaint was served on the defendant shortly thereafter. The defendant successfully moved to dismiss the second cause action on the grounds of statute of limitations. The plaintiffs then moved pursuant to CPLR 306-b to extend their time ot serve the summons and complaint. The Appellate Division affirmed 3-2 the lower court's denial of motion because the plaintiff's proffered no explanations or excuse for the delay in serviing the summons and complaint..
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