CPLR R. 3025(d); R. 3211(e): Affirmative Defense Pleaded in Amended Answer, Not in Initial Answer

CPLR R. 3025 Amended and supplemental pleadings
(d) Responses to amended or supplemental pleadings

CPLR R. 3211 Motion to dismiss
(e) Number, time and waiver of objections; motion to plead over

Mendrzycki v Cricchio, 2008 NY Slip Op 09044 (App. Div, 2nd)

On this appeal, we are presented with the principal question of whether
a defendant may assert a statute of limitations defense for the first
time in an answer served pursuant to CPLR 3025(d) and responsive to an
amended complaint served pursuant to CPLR 3025(b), or whether such a
defense is waived by not having been pleaded in the original answer to
the initial complaint. We hold that such a defense is not waived as the
answer presently under dispute, which was required by CPLR 3025(d),
constitutes an original answer to the amended complaint.

…

CPLR 3211(e) provides in pertinent part, "[a]ny objection or defense
based upon a ground set forth in paragraphs one, three, four, five and
six of subdivision (a) is waived unless raised either by [a pre-answer
motion to dismiss] or in the responsive pleading." Here, because the
doctors' statute of limitations defense (see CPLR 3211[a][5])
was raised in responsive pleadings submitted pursuant to CPLR 3025(d),
we conclude that the defense was not waived. That statute provides, in
pertinent part, that "there shall be an answer or reply to an amended
or supplemental pleading if an answer or reply is required to the
pleading being amended or supplemented" (CPLR 3025[d]; see [*3]Westinghouse Elec. Supply Co. v Pyramid Champlain Co., 193 AD2d 928, 930; Madison-Murray Assocs. v Perlbinder,
188 AD2d 362; Siegel, Practice Commentaries, McKinney's Cons Laws of
NY, Book 7B, CPLR C3025:21). Although CPLR 3025(d) is silent as to
whether new affirmative defenses may be raised in an answer served
under this subdivision, significantly, an amended complaint is deemed
to supersede an original complaint, and thus, a defendant's original
answer has no effect (see Chalasani v Neuman, 64 NY2d 879; Elegante Leasing, Ltd. v Cross Trans Svc, Inc., 11 AD3d 650; O'Ferral v City of New York, 8 AD3d 457, 459; John W. Cowper Co. v Buffalo Hotel Dev. Venture, 99 AD2d 19, 23-24; Stella v Stella,
92 AD2d 589). As such, an answer to an amended complaint served
pursuant to CPLR 3025(d) is in fact an original answer to the amended
complaint, and thus, affirmative defenses raised in that answer are not
limited to those asserted in the original answer.

We recognize that plaintiffs may claim undue prejudice and
surprise from the application of this rule. However, the primary focus
is "the effect of the amended complaint served by plaintiff [ ],"
rather than "the effect of the subsequent answer" (Boulay v Olympic Flame,
165 AD2d 191, 193). Since an amended complaint supplants the original
complaint, it would unduly prejudice a defendant if it were bound by an
original answer when the original complaint has no legal effect. In
contrast, a supplemental complaint, which is not at issue here,^[FN1] does not supersede the original complaint, but is "in addition to it" (Pimsler v Angert, 1 AD2d 783, 783; see Lovisa Constr. Co. v Facilities Dev. Corp., 148 AD2d 913, 915; Stella v Stella, 92 AD2d 589). In such circumstances, the original answer remains in effect (see Stella v Stella,
92 AD2d at 589), such that a defendant could not assert a new
affirmative defense in its answer to the supplemental complaint unless
it is responsive to the new matter alleged (see Garden State Brickface Co. v Stecker,
130 AD2d 707, 709). Accordingly, we hold that a defendant may raise a
statute of limitations affirmative defense for the first time in an
answer to an amended complaint served pursuant to CPLR 3025(d) (see Boulay v Olympic Flame, 165 AD2d 191; Stella v Stella, 92 AD2d 589; see also Iacovangelo v Shepherd, 5 NY3d 184, 186 n; cf. Addesso v Shemtob, 70 NY2d 689).

Here, upon being served with an amended complaint, the doctors
were required by CPLR 3025(d) to respond, and because the amended
complaint superseded the initial complaint, despite the doctors'
failure to raise a statute of limitations affirmative defense in their
original answers to that complaint, the doctors did not waive their
rights to assert that defense in their answers to the amended
complaint. We note that, although the doctors' time to amend their
original answers as of right pursuant to CPLR 3025(a) had expired, and
they did not move for leave to amend those answers pursuant to CPLR
3025(b), they were not required to obtain leave to amend their answers,
since the answers to the amended complaint were submitted pursuant to
CPLR 3025(d).

Thus, the Supreme Court erred in granting that branch of the
plaintiff's cross motion which was to strike the doctors' respective
affirmative defenses based on the statute of limitations as first
raised in their answers to the amended complaints served pursuant to
CPLR 3025(d).

1.  A plaintiff cannot avoid the application of this rule by simply
denominating as a "supplemental" pleading one that asserts new injuries
and a new category of damages, and which is therefore properly an
amended pleading (see Fuentes v City of New York, 3 AD3d 549, 550; Pearce v Booth Mem. Hosp., 152 AD2d 553, 554)

The bold is mine.

Statute of Limitations Cannot be Asserted Sua Sponte

Orix Fin. Servs., Inc. v Haynes, 2008 NY Slip Op 09270 (App. Div., 1st)

Order, Supreme Court, New York County (Jane S. Solomon, J.), entered
September 6, 2007, which, in an action on a "conditional sale contract
note," denied plaintiff's unopposed motion pursuant to CPLR 3215 for a
default judgment and sua sponte dismissed the complaint as barred by
the statute of limitations, unanimously reversed, on the law, without
costs, the motion granted, and the matter remanded for further
proceedings including entry of judgment.

The statute of limitations must be pleaded as an affirmative
defense and cannot be asserted sua sponte by the court as a basis for
denying an unopposed motion for a default judgment (see

Buckeye Retirement Co., L.L.C., Ltd. v Lee

, 41 AD3d 183, 184 [2007]). We have reviewed plaintiff's submissions on the motion and find them sufficient for purposes of CPLR 3215.

The bold is mine

CPLR R. 3211(a)(7) Appellate Division, Second Dep’t Corrects Itself

Hat tip to Damin J. Toell, Esq. for the heads up.

Butler v Catinella, 2008 NY Slip Op 09018 (App. Div., 2nd)

In the context of New York civil litigation, CPLR 3211 is a "bread and
butter" statute. CPLR 3211 encompasses procedural nuances which touch
upon a huge spectrum of factual and legal scenarios. On the instant
appeal, we take the opportunity to reconsider whether the defense of
failure to state a cause of action, a ground listed in CPLR 3211(a)(7),
may properly be interposed in an answer. In several cases, this Court
has stated that this defense may not be included in the answer, but
must be raised by appropriate motion pursuant to CPLR 3211(a)(7). For
the reasons that follow, we conclude that those cases do not articulate
the correct legal standard and, therefore, should no longer reflect the
jurisprudence of the Second Judicial Department.

CPLR § 3213

CPLR § 3213 Motion for summary judgment in lieu of complaint

Dyck-o'Neal, Inc. v Thomson, 2008 NY Slip Op 09208 (App. Div., 4th)

The record establishes that defendants executed a promissory note and
mortgage in August 1986 pursuant to which they agreed to make monthly
payments to plaintiff's predecessor. Defendants failed to make the
requisite monthly payments beginning in June 2000, however, and
plaintiff's predecessor commenced a foreclosure action in November
2000. The mortgage was assigned to a third party and thereafter was
assigned to plaintiff, in November 2002. Plaintiff commenced this
action pursuant to CPLR 3213 in June 2006, and the court denied
plaintiff's motion for summary judgment in lieu of complaint in August
2006. Plaintiff made a second [*2]motion
for summary judgment in lieu of complaint in March 2007, and defendants
cross-moved to dismiss the action contending, inter alia, that the
action was time-barred and that plaintiff failed to comply with RPAPL
1301. The court denied plaintiff's second motion and granted
defendants' cross motions to dismiss on the ground that plaintiff's
second motion was made after the six-year statute of limitations had
expired (see CPLR 213 [4]). That was error. When a court denies
a motion for summary judgment in lieu of complaint, "the moving and
answering papers shall be deemed the complaint and answer,
respectively, unless the court orders otherwise" (CPLR 3213). Although
"the court's authority to order otherwise' include[s] discretion to
dismiss [the action]" (Schulz v Barrows, 94 NY2d 624, 626), the
court took no such action here with respect to plaintiff's June 2006
motion. Instead, by its August 2006 order, the court merely denied
plaintiff's motion. Thus, plaintiff's June 2006 motion papers were
converted to a complaint pursuant to the express terms ofCPLR 3213, and
the March 2007 motion should have been treated as a motion for summary
judgment within the existing June 2006 action, which was timely
commenced (see generally Schulz v Barrows, 263 AD2d 565, 571, affd 94 NY2d 624).

All the bold is mine.

Appellate Division, Second Department, 2007 Decisions of Interest

While perusing the online version of the New York Law Journal, I ran across the Appellate Division, Second Department Roundup 2007¹, announcing the launch of the annual Decisions of Interest Webpage.

The
Appellate Division, Second Department, covering 10 downstate counties
in which more than half the state's population resides, is the busiest
appellate court in New York state and, certainly, one of the busiest
appellate courts in the nation. This annual roundup highlights some of
the Decisions of Interest which appear on our Web page.

1.
The column is from the November 14th edition and is authored by Justice
A. Gail Prudenti and and Justice Thomas A. Dickerson of the Appellate
Division, Second Department.

To go directly to the CPLR decisions on that page, click HERE.

CPLR § 3001 Amended effective January 17th 2009

In Monday's New York Law Journal (and the online version now), Thomas F. Gleason discusses the recent amendments to CPLR § 3001 and § 3420 of the Insurance Law in his article, Loosening the Standing Barriers to Declaratory Relief.  Effective January 17th, 2009 CPLR § 3001 will allow a personal injury plaintiff to "confirm that there is a fund to pay the judgment before, not after, slogging through the underlying litigation," by initiating a declaratory judgment action against the insurance company that disclaims coverage.  He eventually concludes that "restricting declaratory relief to lack of notice disclaimers seems unfair"; that it is "contrary to the basic purpose of declaratory relief."  And  ultimately, that the amendment "did not go far enough."

Below you'll find some excerpts from the article.  I've moved some of the paragraphs around because it makes more sense to me this way.  If you want to read the article in its entirety and in the right order, please click on the link above or pick up the Law Journal on Monday.

This amendment, in part, overturns the standing impediment to such
declaratory relief established by the Court of Appeals in 2004 in Lang v. Hanover Insurance Co.

The change is significant because disclaimers for lack of notice are
common under liability insurance policies. Sometimes they result from
the insured mistakenly assuming no claim will be forthcoming, or
perhaps because the insured is reluctant to communicate information
that could result in increased premiums. In either event, the insured
is courting disaster, because a failure to give the insurer notice "as
soon as practicable" of an "occurrence" that might result in liability,
is a common "condition" of coverage. The consequences of noncompliance
are severe, for both the personal injury plaintiff and the defendant.

To some extent the Lang holding is paradoxical, because the
standing requirement has been recognized to prevent courts from
transgressing upon the legislative or executive realms, or rendering
advisory opinions.  Such defects in the "case and
controversy," requirement of CPLR 3001 destroy subject matter
jurisdiction. But if the insurer has disclaimed, and the defendant is
not sufficiently wealthy to pay the entire anticipated judgment, the
highly motivated tort plaintiff may be the only party in the position
to challenge the validity of the disclaimer. The Lang case
had established that the tort plaintiff has no standing to do so, but
the legislative granting of limited relief from the standing stricture
gives us pause to wonder: Why was CPLR 3001 so limited in the first
place?

At its core, the "case and controversy" requirement is constitutional
in nature, because it confines the proper exercise of judicial powers.
Perhaps then it may reasonably be argued that cases aggressively
limiting access to the court on grounds of standing may have overshot
the mark, while the amendment to fix the Lang problem
undershoots it. Why not let all tort plaintiffs interested enough in a
contract fight with an institutional adversary have a go at it? What is
to be gained by shutting the courthouse door? There seems to be little
risk of generalized pronouncements that affect nonparties to the
declaratory judgment litigation, as would be the case with true
advisory opinions.

The Court of Appeals in Lang noted that the carrier should
weigh the risk of the disclaimer carefully, because of a much higher
possible default liability if the disclaimer is tossed out after the
case proceeds to judgment. This should induce the insurer not to
disclaim unless they are very sure of the right to do so, but will not
address the problem of a fairly debatable disclaimer. If
there is a good reason to restrict a broader right to declaratory
relief, it does not seem to depend on the particular ground for the
disclaimer, or the assumptions by the insurer alone as to how sound
their disclaimer is.

Mr. Gleason briefly takes the reader through the legislative history of the the amendment:

As with most things legislative, this expansion of declaratory relief
under CPLR 3001 is a compromise, and the compromise bears directly on
that formerly harsh rule. In return for the partial removal of the
standing limitation recognized in Lang, the Legislature has tempered the previously clear right for a liability insurer to refuse coverage for lack of timely notice. Starting in January, the insurance company must support the disclaimer by proof that the delay was prejudicial.⁸

8. 

L 2008, ch 388 §4. The insurer will have the burden to prove prejudice
if the notice was provided    within two years of when required under the
policy. After two years, the burden shifts to the insured, and
prejudice is conclusively presumed after a liability determination or
settlement.

I took most of the footnotes out.

CPLR § 1004

CPLR § 1004 When joinder unnecessary

Augello v Koenig-Rivkin, 2008 NY Slip Op 08690 (App. Div., 2nd)

"CPLR 1004, the exception to the real party in interest rule,
provides that an insured person who has executed a subrogation receipt
or other similar agreement may sue without joining the person for whose
interest the action is brought" (CNA Ins. Co. v Carl R. Cacioppo Elec. Contrs., 206
AD2d 399, 400). While an insurer also has the right to commence an
action on behalf of its insured even where there is a subrogation
agreement between the parties, "[n]either the case law nor the statute
require that the insurance company be substituted as the plaintiff
under such circumstances" (id. at 400; see generally Krieger v Insurance Co. of N. Am., 66 AD2d 1025; Point Tennis Co. v Urban Inds. Corp., 63 AD2d 967).

Here, pursuant to the release and trust agreement (hereinafter the release) executed [*2]by
the plaintiff upon receipt of the underinsured motorist benefits paid
to him by the nonparty-appellant (hereinafter the insurer), the
plaintiff agreed, inter alia, to "hold any moneys received as a result
of settlement or judgment in trust for the [insurer] to be paid to said
[insurer] immediately upon recovery thereof provided that any sum
received in excess of the amount paid by the [insurer] . . . shall be
retained by the [plaintiff]." "The meaning and coverage of a general
release necessarily depends upon the controversy being settled and upon
the purpose for which the release was given. A release may not be read
to cover matters which the parties did not intend to cover" (Gale v Citicorp, 278 AD2d 197; see generally Kaminsky v Gamache, 298 AD2d 361, 361-362).

The purpose of the release in this case was to protect the
insurer's subrogation claim while also protecting the right of the
plaintiff to retain any recovery in excess of the insurer's subrogation
claim. Thus, where, as here, the plaintiff seeks damages in excess of
the insurer's subrogation claim, the release cannot be interpreted to
require the substitutions requested by the insurer (cf. Faraino v Centennial Ins. Co., 103 AD2d 790; Skinner v Klein, 24 AD2d 433, 434).

The bold is mine.

Books I’m Reading

Every time I pass through a bookstore, used or otherwise, I seem to find a book I like and buy it.  That day or a few days later I start reading it and ignoring whatever book or books I've been reading up to that point.  This usually leaves me with several books I'm reading at the same time; none of them similar.  What does this have to do with the CPLR?  Absolutely nothing.  I'm just trying to be personable.

CPLR R. 3025(b)

CPLR R. 3025 Amended and supplemental pleadings
(b) Amendments and supplemental pleadings by leave

Brooks v Robinson, 2008 NY Slip Op 08439 (App. Div., 2nd)

A determination whether to grant leave to serve an amended pleading
is within the trial court's broad discretion, the exercise of which
will not be lightly disturbed (see Ingrami v Rovner, 45 AD3d 806; Keating v Nanuet Bd. of Educ., 44 AD3d 623,
624; CPLR 3025[b]). "In exercising its discretion, the court should
consider how long the amending party was aware of the facts upon which
the motion was predicated, whether a reasonable excuse for the delay
was offered, and whether prejudice resulted therefrom" (Mohammed v City of New York, 242 AD2d 321, 321; see F.G.L. Knitting Mills v 1087 Flushing Prop., 191 AD2d 533, 534). In addition, "[w]here . . . the [*2]proposed amendment is palpably insufficient as a matter of law or is totally devoid of merit, leave to amend should be denied" (Morton v Brookhaven Mem. Hosp., 32 AD3d 381, 381; Thone v Crown Equip. Corp., 27 AD3d 723, 724).

The Supreme Court providently exercised its discretion in
denying that branch of the motion of the defendant Brian E. Chambers,
Jr., which was for leave to amend his answer. Chambers failed to offer
a reasonable excuse for his delay. Additionally, the facts upon which
Chambers based that branch of his motion which was for leave to amend
the answer were known to him when he initially answered the complaint.

The bold is mine.

CPLR § 6514(a); § 6514(c); § 6512

CPLR § 6514 Motion for cancellation of notice of pendency
(a) Mandatory cancellation
(c) Costs and expenses

§ 6512 Service of Summons¹

Deans v Sorid, 2008 NY Slip Op 08448 (App. Div., 2d)

The plaintiff commenced this action seeking, inter alia, to
impose a constructive trust in her favor on certain real property
formerly owned by her. She filed a notice of pendency on the property
on April 12, 2007. On or about May 1, 2007, the defendant Harvey Sorid
was served with four copies of the summons and complaint at the
business office of all of the defendants. On May 4, 2007, the plaintiff
mailed two copies of the summons and complaint to the business office,
addressed to each of the defendants Jay Sorid and Susan Sorid
(hereinafter together the appellants). The envelopes were marked
"privileged + confidential."

The appellants moved, inter alia, pursuant to CPLR 6514(a) to
cancel the notice of pendency and pursuant to CPLR 6514(c) for an award
of costs, arguing that Harvey Sorid did not have an ownership interest
in the premises and that service was not properly effectuated upon
either of them within the 30-day time limit of CPLR 6512. The
appellants did not challenge personal jurisdiction [*2]as
it was undisputed that service was effectuated upon them in June 2007.
The plaintiff opposed the motion, arguing that Harvey Sorid had an
equitable interest in the property and therefore service upon him was
sufficient to avoid cancellation of the notice of pendency, and that,
in any event, service had been effectuated on the appellants pursuant
to CPLR 308(2) within the statutory time period. In the order appealed
from, the Supreme Court, inter alia, denied those branches of the
appellants' motion which were pursuant to CPLR 6514(a) to cancel the
notice of pendency and pursuant to CPLR 6514(c) for an award of costs.
We affirm the order insofar as appealed from.

CPLR 6514(a) provides for mandatory cancellation of a notice of
pendency if service of a summons has not been completed within the time
period set forth in CPLR 6512, which is 30 days after filing of the
notice of pendency. In multi-defendant cases, service is sufficient for
purposes of CPLR 6514(a) if it is timely made on any one defendant with
an ownership interest in the subject property (see Merchants Bank of N.Y. v Rosenberg, 31 AD3d 507; Weiner v MKVII-Westchester, 292 AD2d 597; Rabinowitz v Larkfield Bldg. Corp., 231 AD2d 703; Slutsky v Blooming Grove Inn, 147 AD2d 208, 212).

Contrary to the plaintiff's contention, the defendant Harvey Sorid did not have an ownership interest in the subject property (cf. Merchants Bank of N.Y. v Rosenberg, 31 AD3d 507). Accordingly, service upon him was insufficient to meet the requirements of the statute.

However, for the purposes of CPLR 6514, service upon the
appellants was timely effectuated pursuant to CPLR 308(2). While the
envelopes mailed to their business office erroneously bore the legend
"privileged + confidential" instead of "personal and confidential,"
under the circumstances of this case, where the defect does not
implicate personal jurisdiction and no prejudice resulted from the
mislabeling, the defect was properly disregarded pursuant to CPLR 2001 (see Patrician Plastic Corp. v Bernadel Realty Corp., 25 NY2d 599, 608; Matter of Perez v Villamil, 19 AD3d 501; Federal Loan Home Mtge. Corp v Torres, 238 AD2d 306, 307).

1.  CPLR § 6512 reads:

A
notice of pendency is effective only if, within thirty days after
filing, a summons is served upon the defendant or first publication of
the summons against the defendant is made pursuant to an order and
publication is subsequently completed. If the defendant dies within
thirty days after filing and before the summons is served upon him or
publication is completed, the notice is effective only if the summons
is served upon his executor or administrator within sixty days after
letters are issued.

The emphasis and footnote are mine.