Tricked into coming to NY for service?

CPLR § 308 Personal service upon a natural person

(1) by delivering the summons within the state to the person to be served

Dantin v Masi, 2012 NY Slip Op 03399 (2nd Dept., 2012)

Contrary to the defendant's contention, the Supreme Court properly denied, without a hearing, his motion to dismiss the complaint for lack of personal jurisdiction. The plaintiff demonstrated that jurisdiction was acquired over the defendant by personal delivery of a copy of the summons and complaint to him while he was physically present in New York (see CPLR 308[1]). Moreover, accepting as true the defendant's factual allegations regarding the circumstances under which he was served with process, we conclude that he failed to raise any issue regarding whether he was lured, enticed, or induced into entering New York by fraudulent or deceptive conduct on the part of the plaintiff for the purpose of effecting service. Therefore, a hearing on the validity of the service is unwarranted (see Matter of Hammett v Hammett, 74 AD2d 540; United Indus. Corp. v Shreiber, 51 AD2d 688, cert denied 429 US 1023; Gumperz v Hofmann, 245 App Div 622, affd 271 NY 544; cf. DeMartino v Rivera, 148 AD2d 568; Terlizzi v Brodie, 38 AD2d 762).

3212(a) Filed when received, not necessarily stamped

3212(a)

Tafsiou v Arms Acres, 2012 NY Slip Op 03629 (2nd Dept., 2012)

The defendant contends that the Supreme Court erred in denying its motion for summary judgment dismissing the complaint solely upon the ground that the motion was untimely. We agree. In an order dated November 9, 2010, the Supreme Court extended the defendant's "time to file" a summary judgment motion by 60 days. This 60-day extension expired on January 8, 2011, which was a Saturday. Accordingly, pursuant to Judiciary Law § 282, the defendant had until Monday, January 10, 2011, to file its motion for summary judgment dismissing the complaint. On that date, the defendant's motion papers were received and marked "approved" by the Kings County Supreme Court Motion Support Office, the office with which they were required to be filed (see Kings County Supreme Court Uniform Civil Term Rules, Part A). "Papers that are required to be filed are considered to have been filed when they are received by the office with which, or by the official with whom, they are to be filed" (Castro v Homsun Corp., 34 AD3d 616, 617; Coty v County of Clinton, 42 AD3d 612, 613-614 [internal quotation marks omitted]). Thus, the defendant's motion papers were timely filed when received by the Motion Support Office on January 10, 2011, despite the fact that they were not stamped "filed" by the Kings County Clerk until the following day, January 11, 2011. Accordingly, the matter must be remitted to the Supreme Court, Kings County, to determine the defendant's motion on the merits.

4518 germane to diagnosis or treatment/police report

CPLR R. 4518

Sermos v Gruppuso, 2012 NY Slip Op 03623 (2nd Dept., 2012)

Initially, we observe that the notations in the hospital record upon which the defendants rely were not attributed to the injured plaintiff. In any event, even if the subject notations were statements attributable to him, none of these notations was germane to his diagnosis or treatment and, at trial, would not be admissible for their truth under the business records exception to the hearsay rule (see CPLR 4518; People v Ortega, 15 NY3d 610; Williams v Alexander, 309 NY 283; Merriman v Integrated Bldg. Controls, Inc., 84 AD3d 897; Carcamo v Stein, 53 AD3d 520). The inadmissibility of these notations is especially apt where, as here, such evidence is the sole proffered basis for the denial of summary judgment (see Phillips v Kantor & Co., 31 NY2d 307, 310), and where the nonmoving party is not able to demonstrate an acceptable excuse for its failure to tender that evidence in admissible form (see Zuckerman v City of New York, 49 NY2d 557, 562; Friends of Animals v Associated Fur Mfrs., 46 NY2d 1065, 1068; Merriman v Integrated Bldg. Controls, Inc., 84 AD3d 897; Allstate Ins. Co. v Keil, 268 AD2d 545, 545-546).

Accordingly, the Supreme Court properly excluded the medical records from its consideration, and properly held that the defendants failed to raise a triable issue of fact in opposition to the plaintiffs' motion (see Monteleone v Jung Pyo Hong, 79 AD3d 988; Joseph v Hemlok Realty Corp., 6 AD3d 392, 393; Allstate Ins. Co. v Keil, 268 AD2d 545; Schiffren v Kramer, 225 AD2d 757; Henderson v L & K Collision Corp., 146 AD2d at 571).

Hazzard v Burrowes, 2012 NY Slip Op 03409 (2nd Dept., 2012)

Moreover, the police accident report was inadmissible, as it was not certified as a business record (see CPLR 4518[a]), and the statements by both the appellant and Burrowes were self-serving, did not fall within any exception to the hearsay rule, and bore upon the ultimate issues of fact to be decided by the jury (see Noakes v Rosa, 54 AD3d 317, 318; Casey v Tierno, 127 AD2d 727, 728).

Res Judicata

Pondview Corp. v Blatt, 2012 NY Slip Op 03618 (2nd Dept., 2012)

Here, the claims asserted by the plaintiffs arose out of the same transaction or series of transactions as those raised in a prior action commenced by the plaintiffs in 2003 (hereinafter the 2003 action). Moreover, all of the claims asserted here either were raised or could have been raised in the 2003 action. Accordingly, notwithstanding the fact that some relief sought in this action is different from that sought in the 2003 action, the Supreme Court properly granted those branches of the defendants' separate motions which were to dismiss the complaint insofar as asserted against each of them pursuant to CPLR 3211(a)(5), based on the doctrine of res judicata.

agreement to agree is not to agree at all

Michael H. Spector, AIA, P.C. v Billy Smith's Sport Ctr., Inc., 2012 NY Slip Op 03610 (2nd Dept., 2012)

Contrary to the plaintiff's contention, there is no valid line of reasoning or permissible inferences that could lead a rational person to the conclusion reached by the jury with respect to the causes of action to recover damages for beach of contract or to recover on an account stated. With respect to the cause of action alleging breach of contract, the evidence adduced at trial demonstrated that the parties had a mere agreement to agree, which is insufficient to bind either party (see Joseph Martin, Jr., Delicatessen v Schumacher, 52 NY2d 105, 109-110; Maffea v Ippolito, 247 AD2d 366, 367). With respect to the cause of action to recover on an account stated, the parties did not agree on a price that the individual defendants would pay for the plaintiff's services, and the plaintiff thus failed to establish a requisite element for recovery on a theory of account stated (see Heelan Realty & Dev. Corp.v Ocskasy, 27 AD3d 620). Accordingly, the Supreme Court properly granted those branches of the individual defendants' motion which were pursuant to CPLR 4404(a) to set aside the verdict and for judgment as a matter of law dismissing the causes of action alleging breach of contract and to recover on an account stated insofar as asserted against them.

JMF Consulting Group II, Inc. v Beverage Mktg. USA, Inc., 2012 NY Slip Op 05392 (2nd Dept. 2012)

JMF and Ferolito established, prima facie, that the alleged oral agreement was too indefinite to be enforceable and was merely an agreement to agree (see Joseph Martin, Jr., Delicatessen v Schumacher, 52 NY2d 105; Mellen & Jayne, Inc. v AIM Promotions, Inc., 33 AD3d 676, 677-678; Flanel v Flanel, 152 AD2d 536, 536-537). Moreover, since the terms of each loan were set out in writing in each of the separate promissory notes executed by BMU, BMU was precluded from establishing the existence of an enforceable oral agreement by relying on parole evidence that contradicted the express terms of those notes (see Marine Midland Bank-S. v Thurlow, 53 NY2d 381, 387; Dong Won Kim v Frank H. Truck Corp., 81 AD3d 586, 587; Friends of Avalon Preparatory School v Ehrenfeld, 6 AD3d 658, 658-659). Since BMU failed to raise a triable issue of fact in response to the prima facie showing of JMF and Ferolito, those branches of the motion of JMF and Ferolito which were for summary judgment dismissing the first counterclaim and the first cause of action in the third-party complaint should have been granted.

rare appellate procedure

Thomas v Kiriluk, 2012 NY Slip Op 03631 (2nd Dept., 2012)

"As a general rule, this Court does not consider an issue on a subsequent appeal which was raised or could have been raised in an earlier appeal which was dismissed for lack of prosecution, although the Court has the inherent jurisdiction to do so" (Kitt v Podlofsky, 72 AD3d 1030, 1031; see Bray v Cox, 38 NY2d 350). Here, the plaintiffs appealed from an order dated November 10, 2010, which granted the defendants' motion for summary judgment dismissing the complaint, but the appeal was dismissed by decision and order on motion of this Court dated October 24, 2011, for failure to prosecute. Nevertheless, under the circumstances, we exercise our discretion to review the issues raised by the plaintiffs on their appeal from the judgment (see Kitt v Podlofsky, 72 AD3d at 1031).

Kalafatis v Royal Waste Servs., Inc., 2012 NY Slip Op 03603 (2nd Dept., 2012)

As a general rule, this Court does not consider an issue on a subsequent appeal which was raised or could have been raised in an earlier appeal which was dismissed for lack of prosecution, although this Court has the inherent jurisdiction to do so (see Rubeo v National Grange Mut. Ins. Co., 93 NY2d 750, 754; Bray v Cox, 38 NY2d 350, 353). While the better practice would have been for the plaintiff to withdraw the prior appeal rather than abandon it, nonetheless, we exercise our discretion to review the issues raised on the appeal from so much of the order dated April 27, 2011, as was made upon reargument (see Franco v Breceus, 70 AD3d 767; Newburger v Sidoruk, 60 AD3d 650; DiGiaro v Agrawal, 41 AD3d 764; Cesar v Highland Care Ctr., Inc., 37 AD3d 393).

Photographs

DiStefano v Ulta Salon, 2012 NY Slip Op 03590 (2nd Dept., 2012)

In support of their motion, the defendants tendered, inter alia, surveillance footage of the accident, as well as photographs identified by the plaintiff as fairly and accurately depicting the spot where she fell on the sidewalk, and those evidentiary submissions showed no dangerous or defective condition.

Wide lattitude coming through

Diarassouba v Lubin, 2012 NY Slip Op 03589 (2nd Dept., 2012)

When considered in context, the comments made by the plaintiff's counsel during summation were within the bounds of the wide latitude allowed to counsel during summation, and did not deprive the anesthesiologists of a fair trial (see Braun v Ahmed, 127 AD2d 418, 421-422).

3025(b) denied on the merits

CPLR R 3025 Amended and supplemental pleadings

Cervini v Zanoni, 2012 NY Slip Op 03582 (2nd Dept., 2012)

Since the proposed amended complaint was patently devoid of merit, the plaintiffs' cross motion for leave to amend the complaint should have been denied on the merits (see CPLR 3025[b]; Martin v Southern Container Corp., 92 AD3d 647, 649).

Interesting transcript

I haven't seen an unsigned transcript permitted to be used in this context

CPLR R. 3116 Signing deposition; physical preparation; copies
(a) Signing.

CPLR R. 3117

Boadu v City of New York, 2012 NY Slip Op 03581 (2nd Dept., 2012)

The Supreme Court properly considered the deposition transcripts submitted by the Transit Authority in support of its cross motion for summary judgment. Although unsigned, the deposition transcripts were certified by the reporter and the plaintiff did not raise any challenges to their accuracy. Thus, the transcripts qualified as admissible evidence for purposes of the cross motion (see Rodriguez v Ryder Truck, Inc., 91 AD3d 935, 936; Zalot v Zieba, 81 AD3d 935).

Relying on this admissible evidence, the Transit Authority established, prima facie, that the station agent did no more than furnish the police with information which, after an investigation, resulted in the alleged unlawful detention and arrest of the plaintiff. "[A] civilian complainant, by merely seeking police assistance or furnishing information to law enforcement authorities who are then free to exercise their own judgment as to whether an arrest should be made and criminal charges filed, will not be held liable for false arrest or malicious prosecution" (Mesiti v Wegman, 307 AD2d 339, 340 [internal quotation marks omitted]; see Levy v Grandone, 14 AD3d 660, 661). However, in opposition to this prima facie demonstration of entitlement to judgment as [*2]a matter of law, the plaintiff, through his deposition testimony, raised a triable issue of fact as to whether the station agent "affirmatively induced the officer to act, such as taking an active part in the arrest and procuring it to be made or showing active, officious and undue zeal, to the point where the officer is not acting of his own volition" (Mesiti v Wegman, 307 AD2d at 340 [internal quotation marks omitted]). Accordingly, that branch of the Transit Authority's cross motion which was for summary judgment dismissing the complaint insofar as asserted against it was properly denied.