THE COURT F~NOUNCES FOLLO;AJING S warran under Insurance Law 3106(a) I S it &J n accorcLarJ.ce ract,...

$: THE COURT F~NOUNCES FOLLO;AJING S warran under Insurance Law 3106(a) I S it &J n accorcLarJ.ce ract, B&J coverage any ent that B&J was contractual to l i s B&J I S v\Tork or s t 1v-.I.$
f

FIRST DEPARTMENT

",".r. .

THE COURT F~NOUNCES FOLLO;AJING S

CattersOD, Acosta, JJ~

e or the Sate I

aga

AlbertoDe lant.

Dean, Center latecounsel), for appellant.

t I New York

f District S HollandBronxRobert. T.L'~ILu.iucl) J resj:)oncJent.

a

fe ~.c dorLen er, to an of 12 years

a er

erest 0 1=.L. just.ice, ea vacat.ed, and t.he mat.t.er

for hel~ a neVl

ea was t at the plea locuti

V,las no ment.

wou.ld be wai I DC s t.o

j s at s

self- see 4 AD3d 411 [2007])

.cLeLiU,::Hl ea id;

is so

P.:.t tIle Sl:i·PT)reSS ng, court

to e

e1s case cross of the arrest of icer

officer , .\- ' += 'ceSt..l1...l

there person

e a

facie of cause for defc::~.,u(01.UL.'s arrest based on

the • : IalnanL: s ion, this was not a basis on

.c1...

tor (see e 7 9 '7

e Sanchez, 6 243 99'7]) .

THIS CONSTITUTES THE DECIS ON ORDERTHE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.

ENTERED: NOVEMBER 3, 008

2

• I Catterson! JJ .

4518 SF

K=ca~mer

Inc., etSf

lis [y;

llant.

• ! 604357/06

fappel ciTlt ~

& lv]unves PC I New (Bij an of counsel)! for

Court, New B. Lowe IIII

lJ. ) entered June 24, 2008, which l to the extent f-!l-JCU.l-ed from as

1 ted efs l ions of de IS motion to

a

G~L:Ol~Df S

between SFH and

because

issue s SFH woul have for St.

KJ:amer 's 1 ch was dec

trat or Delaware action (see SB -v 83

NY2d 974 [1994] i v S t e.rn / 14 5 .A..D2 d 3 2 6, 3 2 8 [ 19 8 8] )

the arbitrator t FH was po. St.

cons ext

~ven

rej Kramer

t.....i:=-L..L~ u.si

establish, for purposes of iffs' all awareness,

t the 8t~

Thomas facili was not inc tlle def t o:E

tal (see Held v Kaufman, 91 NY2d 425, 431-432 [1998J)

el, a ed businessman,

Qc'llTJ.aCjes 11

Arna Indus" Inc. Re rement Trust lls

3 o o ) . Kramer

establish/ as a matter of law, tha o not

t

to terms that Kramer fai ed~ to

IS

event,

321

CONSTITUTESCOURT, APPELLATETHE

THISSUPPwEME

DECISION A~D ORDERSI IRST DEPARTMENT.

4519520

452

• f

e

teen :(ears • J

IS

If . ,

dYears J etc.,

Nadia ,J.!

• f

Steckler!'_'-JU.lL",e )!

of ion! Fami Court, Bronx

fmarl, J ) I u!=: c; erru:)e r Or:,v/

mother!s

ssion of ect, rans

\-Vltlllii..LS S Soc a

purpose

',-lL

costs.

j UQc::;mE,nc

• 1 30

would

00 ) .

ive the child a "peJ::'ffi23.nent I

amily· relat tter of o

299 / 30 [1992])1 the It,..LHu.l.-ion of

mother1s 0.1 S was the Id1s erests was

sUPP,oJ::'ted of the e that

t I ..L

had seen only a ew times her li I that the

1 about

not t l S co.

167, 71 7 1 82 ] Ma 04 1"]")2 99 [2 03 )

OF

• i

et

4523 In re Lou-Ann El

Sp,:lnClerl't s .

Sf C. !

·~'-!ll!l.ll..L S

al' l

1 782/07

pe i se

chael A. Cardozo,of e ) f reS~)OnClen

Counsel, New York (£1 tch

Det tion of reS~)OnCleJnt Police March

20, 2007, f..LL'~_LLl.~ itioner of

conduct that she forfeit the served in

suspens

S ] f December

Pet tioner sent

where she had reason to believe mar Juana plants

as ss

room that was locked and told ner

to grow in east one

acts and it 's use of

garage, was in c to room from

the smell of marijuana

9

heat from ellS i

cLct. i '",vas was

(see 00 Gramatan

45 d 176{ 1- 2 st

or: (see Matter

ice in New ~:{ork is eet the

.c"O.\.../.,u-'-J.J.•"strative

set

of

lD

l

~vil

of New York and

-';0'-"1.'-' ce Law § 75 are

! the

e

herein (see Matter of Monte.lla Bratton, 93 NY2d 424, 30

[1999J) Nor does of 40- stl-spens i011

ate n .....u"."u-,-stra t i ve § 14-115 (a) (former sect on 4340.

\) .

(see Ma tey Kel ir 40

's

THIS CONSTI DECISION ill~D

OF SUPRE1VIE COURT f APPELLATE DIVISION!

10

At a term of the Appellate sion of theSupreme Court held in and for the FirstJudicial Department in the County ofNew York, entered on November 13, 2008.

Present - Hon. Jonathan Lippman,John W. Sweeny, Jr.James M. CattersonRolando T. Acosta,

x------------------------------

The People of the State of New York,Respondent,

-against-

Edward Melendez,Defendant-Appellant.

x--------------------------

Presiding Justice

Justices.

Ind. 56865C/05

4524

An appeal having been taken to this Court by the above-namedappellant from a judgment of the Supreme Court, Bronx County(Megan Tallmer, J.), rendered on or about October 10, 2007,

And said appeal having by counsel for therespective parties; and due deliberation having en had thereon,

It is unanimously ordered that the judgment so appealed frombe and the same is hereby armed.

ENTER:

Counsel for appellant is referred to§ 606.5, Rules of the AppellateDivision, First Department.

At a term of the Appellate Division of theSupreme Court held in and for the rstJudicial Department in the County ofNew York, entered on November 13, 2008.

Present - Hon. Jonathan Lippman,John W. Sweeny, Jr.James M. CattersonRolando T. AcostaDianne T. Renwick,

Presiding Justice

Justices.

___________________________x


Ind. 3655/05

-against 45254526

Rickey Hardy,Defendant-Appellant.

x

on

the above-namedYork County

27, 2007,

An appeal having been taken to this Court byappellant from an order of the Supreme Court, New(Charles H. Solomon, J.), ente on orand judgment of resentence, same court and, Justice,or about April 20, 2007,

And said appeal having been argued by counsel therespective parties; and due del ion having been had

It is unanimously ordered that the judgment so appealed frombe and the same is hereby affirmed.

ENTER:


4527 e New 79 /05

1

Robert Iv].s

District p"t,-,-'u,..,,,,el) I

(Ellen

r New York es J. Tejada,

J. at suppression Arlene rgr J. at jury trial and

sentence) I 2006, convict defendant of

o

ClEo I:erlCli3.nc:: ' s

s codefendant were joint In an effort to make

en an ficer r

s l _m poin·ted out two men as the

th the cards." s ed

'0Jhen i 1 s ter f v.Jclk

3

ist f er:1Gi:in.T::

Ie

th.a~

I vJe COllC

to ca-Llse - endant1s

e \ivere :rtot s acces

1 (see

e vStates! 33 16O, 75 [1949J

Bi ow, 66 NY2d 417, 423 [1985

We no basis for reduc the sentence.

00

1

528

• f

1iff,

I Acosta!

20556/0584962/06

06 /0

ster TovJer

aga

o I • f

llctI1t ~

The sterSecond ThirdPI

cc)n(::lOmJLnlUm, et a1. I

.M.~JIJ'C:::.J..lants ,

. ,

1

Molre sp,olro,::;n

Citrinre Sf,oI1olent:

t LLP, Success M l

Order t Court] Bronx (SaIl Manzanet e1s,

J.)] ent on or about 6/ 2007 I as

from as efs,

D

15

se

s

action s

CLJ.'-"'C,u"'-'e>/ second

155 \AJest 68 Street Assoc t Sf

S !

Dorchester) summary j uClgrnent on its lrlClE:::mnlficat as

aga

Dorchester summary on the lrio_'2rrml ticat

claims as against VanIo, and otherwise affirmed, with costs in

favor of Dorchester, e Vanlo, and ma ter

to ion 11 (see

. , 3

statements in the of its \\ [w] i th cont

II a

Traumatic program. However, t same

also states a iff is e at s t (see

~\.LUJ'::::;.J..S V Club, Tnc., 3

6

o , [ 004]) . The

as to

assert iff

a 's actual

pass

indeed t e

unempI e any capaci (id ) .

'\r,"~,~hcster's mot for summary J on ts

as against VanIa should have been ed

since is no evidence of on i s or thc<.t i

or cant 1 pI iff's work (see

Constr. • I • I

'THIS

7

erson/

529 ornlant:

/

2, et

LA. ~1 V • •.L.J•.L a t -

, !

s·~)OncJ.ent s .

a~c f .1. aa.c &

~~!LA.'"~~k), appellant.

10; Vitucci, Klar,a f\1atthS'f!

er &of

LLP,uLHLbcl) ;

andares~()oncients.

Order; Court, Ne'/I! County , J.),

entered June 6, 2007, which iffls mot to set

aside the ct plaintiff, among other 70/000

for past : 0 0

from what e

circumstances (see ia 17 JJYIM r:U..l.U.LUjUH ] ) .

1

THIS CONSTITUTES THE DEC SION ORDEROF THE SUPREME COURT, APPELLATE DIVIS ON, FIRST DEPARTMENT

ENTERED

18

• r te s

530 tries, Inc., es

aga st-·

• I

larrc 1

e1lsIDefendants.

Ifsen P.C., New Yollants-resp,orlaents~

LLP, New York (Nea M. Gla r of ) ,

Order juaqmen (one r) f COD.rt f N

s'

. ) ,

s

j uaqm.en r

1 s

surance C l excess Zur

underl personal ury action, that the $1 mil

deduct 1 c...L'",.... icy .1 s

sl fled on law: o decla.re tha t

is Zurich policy, rich p0,1 l s

-to ~I •

..L..L and

19

is 1.J.. a

se

fi costs

ext coverage 0 llYl

urles arose out of

Ins. Co., 23 AD2 2 1 [197J Consolidated son Co.

N.Y. v Ins. Co , 203 P.D2d 83, 83 84 [1994]). Thu.8, Arch

was red to disclaim coverage. / S etter

dated 2, 2005 was effect as Pav-Lak because Pav-

Lak received a copy it (see tt v Transcon~~.,"~""tal Ins

Co., Inc., 41 AD3d 339 [2007J, Iv ed 9 NY3d 817 [2008J),

of se s a

i (see Na Ins. Co. v

is

readi letter, whi rece

8, o 5 (see West 6th St. Tenants 1.. Servo

Mut. Ins. Co. I 290 AD2d 278 [2002] , Iv ed 98 NY2d 605 [2002] i

ey v sey Re 1 A..D3d 218 [2005J ),

f to Pav-Lak t ly not of ts sci

ts reliance on t Steel exc as a is

20

s a

97 NY2d 646, 648 649 [2001

of the

exc does v

2'IG Ins ~ Co ~ I 00 NY2 d 377, 383 [2003])

.L

eenclOI"'sernent s not bar coverage or

icy exclus and fore is not ec to

tirne Insurance Law

3420(d) (see Power Sta te of N. Y v IVa L...L.VJ.J.Q_'- on re

Ins Co. of t 306 AD2d 139 [2003]). Nor is the

a warran under Insurance Law § 3106(a) I S it

&J

n accorcLarJ.ce ract, B&J

coverage any ent that B&J was contractual

to l i s B&J I S v\Tork or

s t 1v-.I.

can MrTa. Co ! 30 24 2003J) Pav

1 S commerci l

l tis

irl.su~ra~nce to yo-t.l coveri ror

r,r +,_ v-'- '-'

cLS l II

the icy is excess to the

TUTES THE DECISIONIVISION,

ORDERIRST

icy (see id.).


45311

6 23 /02

eIRes~c)onc!.erlt .

appel

ck& Strauchler, New York (~'Y'a",aGoodsel , MacNeil,-'"nJ.l.Lc:>cl) f for resj:,:)o:rlCleJ'lt

Post l Pol

and judament (one paper) , Court, Nelftl York

and DeGrasse! J.) entered

a action the amount 0

's

the deducti se -insured

law! to lS cross motion; vaca e the jUULYlllCllt, and

a rl s ies

to on icat a oss convers

factor, and OL::n!::':IWJ se fi ithout costs.

to cornpens t ect

2

s convers

03 ses" o.rt e

/J \,

s program ana

s for a loss 1 tation L $500,000 for each of

terIT! s program is

def inecl iTl article IV[C , whi covers

obI ions, states that defendant shal bill

i f each mon for tIle CUllU '-"""t the month's

sens

i

I

e; and tho. LCF 0 app to

amount.s

and specl C, and caul so stat 1.203

first $500;000 .203 to all

amounts 500;000 ies

Ie rv [C] \\ II

re fO 0

OlJ.t

i

sat

an to one of the icies s not spec f c

o 3 ler s

not conclusive as 0 esT tentions. TIle e of

omission" should not be ied to conclude that the omission of

a cap on the laims fee was intent slJ.ch a

moti

that is sticated was trumental

s

company, act

rna l

2

a s reteIlt

003 ! 004] aWl Inc. v

5 7

o

82 J )

THIS CONSTITUTES DECIS llJ:JD ORDEROF THE SUPREME COURT, APPELLATE DIVIS ON, FIRST

2

4532

, ;

re

erson, Acosta]

111044/0

Re sj:)o:ncle:nof

\..-'~'llLlllU.lJ..J..cations co., New York (Christina Norum of

Court, New (Debra A. James,

J. ) ent May 4, 2007, petition, vacat

's determinat e itioner's

matter

rel

is ested

encompassed her conduct re ation "rlll S I

ions, rec

institut A\AJOLs, ime and leave, s

OJ:'O(:::edllres, be e£ ic II

was t ted, alia] for

repeaced lure to statistical

es c,tions

27

Correction,

5 339 [199 on a 21 AD2

70 9 ) I

c

Pet cI.ence tl'lcl

t

l reasons tter of San ago Horn, 7 P'.D3d 3 7

[2007] ) itioner merely sed factual s t

do n.ot entitle her to a ng.

THIS CONSTITUTES THE DECISION P~JD ORDEROF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT

28

533 e ofReS];)OI1aenLL

55 /0

stDef,---,.Lv.,.,""t ::>'I-'l-''--..l.lant.

lant.o cou~nsel)

Court, Count is J ) f

1 5, 2006, .c r •

al..I:l

ication lant's counsel to withdraw as counsel is

(see iinc1ers v i a, 386 US 738 [1967]; rCUU·.Le

2 AD2d 33 [1976] ) trlis record

clg:cee 1 I S ass no

app

l

such erk Court a Justice of

the the

respondent within (30) ter

a

icat Sl to

29

OF

3! 200

30

sion of theFirstof2008.

At a term of the AppelSupreme Court held in and forJudicial Department in the CountyNew York, entered on November 13,

Present Hon. Jonathan Lippman,John W. Sweeny, Jr.James M. CattersonRolando T. Acosta,

Presi ng Justice

Justices.

x---_._-----------------------


Ind. 11051C/05

against 4534

Samuel Rivera,Defendant-Appellant.

x----------------------------

An appeal having been taken to this Court by the above-namedappellant from a judgment of the Supreme Court, Bronx County(William Mogulescu, J.), rendered on or about March 9, 2006,

Andrespect parties; and due deliberat

counselh.aving en treon,

It is unanimously ordered that the judgment so appealed frombe and the same is hereby armed.

ENTER:


5 5 2 /0

1 A.Natrella of

'.-GlL \,.;.,-,20,

coun.sel)Counsel,

for re s};)o:ncleJC1lJ.Nev<r York (Elizabeth S

Saks! LJ ~ ) f

or about March 3D, 2006, r upon the

of defendant's for rected di ssed

af sts.

e ei

s

VJarrant a was

shot the face assai ant who esc:a~)ed The invest ion

ti focused orl tILe Allot 11.e r

officer at sc I Detect a~nco f gave a

s il

However, he

3

the

st

Be

gunman t l

s

assailant before the iff. None of

of the suspec

or ~ct~'J~iancols and 's identif cations of

the assailant was be jury. Pla iff

was indict was t e ted all s at

(see

more e

US 108 [1964]) to the arrest; tion

from ss

sorneone left me sages on

the t rnaCfline 1

o icat of a rnade who

3

as rflatt

(see 9 ] )

Wi to a.intif IS

for his continued prosecut entioD J vvhich

falsif lon ev jury (see

ty of New York] 2 AD3d 291, 292 [2003]). We eet ainti r S

that the ctment

arrest

sconduct

ices i e cases (see v Town

son, 72 NY2d 280/ 1 is

rement prosecut se to the jury

sess e to

evell such ion a ow t

Lancas 22

19 7

test

a 'iff (see ~~~.!~~4L~, 2 ?~3d at 292) .

j es l

ficient of f../ctjJ-L.-Li to warrant an

ctment (see CPL 190.65[ ])! even the jury so

that ~ctiJV-U-Lanco and ailored ir

ions of gunman to as

facts the t ial jury could

by rational SS, have favor of iff

ury a

's

ENTERED: NOVEMBER 13 1 200

536N-5 6NA

f -

5 / 8

t

\bleiner j

De IC::1J.V.(:Al.l 1 ant.

1

es Mirotznik, New York Ellen 0; en of

Order! Court, New (Laura sitae

s J.), ent on or about 18, 2007, ch insofar as

d.Llu,::a.-Led from as 1 t briefs, gran ed aintif IS cross

l

order, and

order! same Justice, en

fees; ly rmed, with costs.

In law is we s i \\

to est covenant a s

(Borax v 4 NY2d 113; 115 [1 58]) s

e""v"en

3 1:"o

spOLlses at

s,

s terlance; s tlement st tions contu.J..u.-,--u::::;

c aJJ~ses ( see 1 1 )J,

l

of law,

l

e de IS the e Q'~

settlement st , we f tho. contrast to

those cases Vlas enti 1 to cant rece

cert benefits under an te s or l1e:r:

of a no-molestation clause, de reason of his

toward !----'--L.cA_-'--UL-iff I has eited his o unusual

al

nter v 432 [2008J Wasserman

9 [2

THIS CONSTITUTES THE DECISION AND ORDEROF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT .

. NOVEMBER 3, 2008

37

• I

4537N

-ctga

o 7/

le1. • I

Manuel D. Gomez & Associates, PC, New York1) ! lants

,',c~Hucl D. Gomez of

Cohen & Krassner, New Yorkre s.

Kras counse ), for

Order; Court, Bronx Count (Luc Suarez, J )

ent 26, 2008, defendants' ion to vacate

and for ~c,·r~'ssion to serve ansvver'/

o t e

v

292

inact

d5 [2002])

to the

In s def

s of a 0' act

CL'~'AU~S attribute thei

filed

in New based on the identical facts and

1 i the face of s

1 1 1

v Gurman/ 272 AD2 000

also ,.L

38

i

preference cases on 'Ls (see

302

1 96 J ) I V.Je

scret Sl motion to vacate

ENTERED: NOVEMBER 200

39

4539 Santana,iff

149

The Ci

1 fl... Cardozo,'-"--'LU~C>';:::J.), for

.M.lJlJc·J.lant.

ion Counse I

llant.York ( F.

Thefor

Firm, P.C., New York (Tania M. of counsel) f

Judgment, Supreme Court, Bronx (Stanley Green, J.) f

entered on or about January 16, 2007, upon a jury verdict f

100% liable for iff's es,

affirmed, without costs.

iff was 1

metal ballard sleeve from a

the 40 lard e pas t sleeve

to aE:LE~n(2a.nL's content f its motion to di ss at

t was properly denied, al de did not

or written notice of fect condi ion (see

Administrative Code of the ty of New York § 7-201 [c] [2] ) f

eviaence established recognized eX~cE~ption to the

written not requirement applied, namely that defendant acted

negl ly when it aff ively created the dangerous condit

40

see New I 7 o

. ,

Defcu,--,v.u0, 93 NY2d 471, 474 [1999] )

boll s

tion (see Posner York

that the

f 's

a

1 e was

27 AD3d 5 2 s

0.110\'1 cles to access areas of the

normally blocked by bollards.

THIS CONSTITUTES THE DECISION A1\fD ORDEROF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.


41

4540

, I

iff -Re,spc)ncien

inst-

485 /0

cal ice Insuranceof New York State l

De lant,

Andrew Gardner, M. ,et al' l

LJE:LE:::n'll.ancs.

(Evan H. ck '--I-I LUJ.i:;;> I;:: 1 ) I for

Bondi & Ifor respondent.

Ci (Desiree 1 Fusco C01J.nEle-t) ,

Order l Supreme Court, New ila Abdus

J.) lent chI jUU'':::Jll\I;::U

ac fenaanc-aoDell

de in

I denied 's mot

j rc:"rc;>rQorl/ on the law f with costs I

motion granted, and it is declared that is not

obl to or iff

action.

Plaintiffs in the underlying action al er

plaintiff herein rendered negligent genetic counseling services;

plaintiff herein alleges that she rendered the genetic counseling

Qor"n ces question as an employee of

42

ician named in the

c covers i

mself (re to If ) ic

solo eSS.l.UHGl.l. service 's

'--''-H,,,"-"",-,-strator, ifi i

estat . t he

aims,lf def as " l s from aga

you because of Professi ces which were provided (or

should have

are 1 ly responsible." pol warns, however: "Be sure

you understand that you are not covered under this icy for the

acts people your emplr'l'\,m,,,,,, for whose conduct you

are reS'ClorlSlb e UNLESS THEY ARE INSURED UNDER A

PROFESSIONAL LIABILITY CY,"

would excess of i a

over the coverage the other The exclus

sect of ists "certain UC;Ul,J .Le If :

Physicians," physician's assistants, specialist's assistants,

nurses anesthesia s ces, nurse i ioners, and

policy is ambiguous as to whether it covers employees of

midwives employed by the physician.

Plaintiff argues, and the motion court

physician other than the ones listed in

that the

exclusions sect

As the motion court saw it, to general

43

exclude empl s would

\\

s It S the event

ician] is r ous y ab

rl ffs'

cl s

[de 1 S cy, s

pol 1 S car li 1 s guous,

physi an is covered for "[s]e ces which ""Jere ded

r for s conduct is] egall respons II

does not create coverage those " r e" (cf. Na iona

Gen. Ins. Co. v Hart.ford Ace. & Indem. Co.! 96 AD2d 414 [1993

[no of was nded 0 be red

SOF THE SUPREME COURT, APPELLATE


44

.! l'vIa

45414542

11

D. ,Respondent

C. , pro se"

, Fami Court, Bronx (Sue ) !

entered on or about 1 9, 2007, whi in a

pursuant to article 6 of ly Court Act, U-L"""'-Lssed the

ition for modification of a or order of visitation wi

ce, unanimous affirmed, thout costs.

JJ-L;:;'ll,-Lssal the ition wi udice due to

itioner's nonappearance at s"-'UC;;U,U,-L was

the erated it argues

his lure to was due to court's erroneous ist

it would not issue an to eSB

an,yo,", ce was ef cates

otherwise. The court, while ial ing that personal

service of the summons and petition upon respondent was required,

subsequently acknowledged that the requirement would be relaxed

if personal service was imposs e (see 'Matter of Cruz v Cruz, 48

AD3d 804, 806 [2008], lv denied 10 NY3d 712 [2008]; Fami Court

Act § 651 [bJ ) . court also set a

45

e for the hearing and

him to testi lect However, ioner

re to s e

itioner nor

contention, court was when

al c t 1

indication was

with subject ion or notice of (see

Matter Church, 294 AD2d 625 [2002]).

We have considered contentions,

including those relat to alleged violations of his

consti tut-L.'-'UU.-L. f them

THIS CONSTI THE DECISION p~D ORDEROF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.


46

454 14858/06

against

Warner Inc., et al ,De s-Res]::loIld12nts

. ;nco ,,-"UW-Gl,U'-S.

lU.Lu':;li::JDe

er w~~r,,·'"tz & Feit j P.C., New York (Stuart A~ Blanderlant.

11counsel), for

New York (.wctLlVL..l.S C. Best of

Court, New York (Rolando T. Acosta;

J.), entered 10, 2007, which, to the extent from,

the motion of defendants \illarner nc. Warner

e Warner) to u-.c.'-"l",'-SS caUses

defamat asserted O''-ICLLU",t them in seventeenth and

e causes of action, f rmed, s

S intiff is a ic ficial, was red to

allege Time Warner with actual malice, which means

with knowledge that statements at issue were se, or th

reckless di of whether or not they were false (New York

Times Co. v Sullivan, 376 US 254, 279-80 (1964). Reckless

47

s

(Gertz v Wel .. , 418 2 , (1974). It

fice to lower st","",u.u..L s

e-person. f , as set

v (38 NY2d 196 [1975]).

PI l ice icit 0 -,..'.L

acts from actual ice can be

malice cannot be legat merely

suggest that Tflarner reason to the accuracy

ormation at issue (see Harte-Hanks Communica v

Connaughton, 491 US 657, 688 [1989J) This asserts, at most, a

Is far of site

S L.Q..UU.CLL (see Masson . / . , o

51 9 ] i , Inc. v I 4 9, 291 97 ]).

There is no merit to that

malice StU.Hw,,,,..L not y Warner

i newspaper. On contrary,

s iff is a , he must actual malice

in order to overcome that i of

information from a reli e source (see Karaduman v Newsday,

Inc., 51 NY2d 531, 551 [1980]).

48

unavail

THIS CONSTISUPREME COURT,

DECISION AJ\1D ORDER ....SION, FIRST DEPARTMENT

ENTERED:

49

1..J... I 008

4545 8242/05

West

De

, Inc.,

et l.!s

Bronx 99 Cents LLC,De lant.

Herzfeld & Rubin, P.C., Newfor appellant.

(Neil R. counsel) ,

, Pollack, Isaac & DeCicco, New (JillJUl.li::lCJ..) , Salvador F , respondent.

Rosen of

JeffreyUH;.C>'-....l.) ,

ller & Associates,West 170 Rea

P. 0' New York (Jef, Inc.,

ller of

Court, Bronx Count""

(Wilma Guzman, J.),

entered on o::c about March OJ 008 1 ch, as ed

from, an act es sust as a

result a sl fall on snow and ice, ed the mot of

Bronx 99 Cents LLC for summary j ss the

compl and all cross cl as t it, unanimously

affirmed, wi costs.

The evidence, including, inter alia, conflict testimony

from the owner of Bronx 99 Cents and the landlord, defendant West

, Inc., presents t able issues of fact as to

50

s was

for on

f sl fell. Furthermore,

owner of Bronx 99 Cents not recall fort

s oyees on the of the acc.Lu.",u,- s test

as s removal c O'-I 1 as aintif '

test 11 when he sl a ch of ice

the gray, slushy snow located within a shoveled

that a fe alternat rout to around the

zard he sl.Lvv",u. on not exist as the ed path abrupt

ended, was sufficient to raise triable issues as to whether Bronx

99 Cents created or a condit (see

v , 48 AD3d 275 [2008] i I!renae'rvrllle v

. , Tne. I o 7 00 ]) .

Final even as that an

unsworn from ainti f's (see e.g. ton v

Almaraz, 278 AD2d 145 [2000]) f it is clear that the court not

its ruling exclus on the Rather, it is

that court cons documentary and depos

at its erminat

THIS CONSTITUTES THE DECISION AND ORDEROF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.


51

of therst

of2008.

At a term of the Appellate sionSupreme Court held in and theJudicial Department in the CountyNew York, entered on November 13,

Present - Hon. Peter Torn,Angela M. MazzarelliDavid B. SaxeEugene NardelliJohn T. Buckley,

Justice Presi

Justices.

____________________________x


Ind. 486/07

-against- 4546

Lorenzo Deas,Defendant-Appellant.

___________________________x

An appeal having been taken to this Court by the above-namedappel from a judgment of the Supreme Court, New York County(Ronald Zweibel, J.), rendered on or about September 20, 2007,

And said appeal having been argued by. counsel for therespective parties; and due deliberation having been had thereon,

It is unanimously ordered that the judgment so 1be and the same is hereby af rmed.

ENTER:

Counsel for appellant is referred to§ 606.5, Rules of the AppellateDivision, rst Department.

> I

45474548 I M., and

etc. ,

n.J..>IJ'C.l.lants,et al. I

sAna M I

Responden

.-:\.\..u,t.J..H.l.stration forPetit Res~IOrldjent

's S ces,

'-'-'Ul1U';:::.l.), andof

Proskauer Rose, LLP, New York (David L. ShaulCenter For ation, New York (Susancounsel), for Ana M., appellant.

Steven N. Feinman, White ains, for Christopher T., appellant.

Counsel, Newrespondent.

zo,counsel) ,

A.:or,ent:hal

Tamara . StKatz of counse

Soci , New York t

Order of sposit Court, New

Adams, J.), entered on or 28, 2007, whi a

fact that res~lorld!en s had abused and

medical ected Samantha M. and and

T. , cus of

Commissioner of Social ,-,c>r"T"1 ces, unanimously firmed, without

costs.

Based on the credible testimony of the then two year-old

subject child's treating physician that her inj s, which

included mult e ses to her face and body and a severe

53

admiss s each

an el lie to cover f'a,'ct

latter was alone th for several

izat for her , we find , s

of ect were

of court was enti led

the testimony s' ld's

were a t of disease

(see People v Wells, 53 AD3d 181, 191 [2008]), eSDeClaii

since neither expert actually examined her.

ectedeEipC)n,:1ents medical

to seek

As to

uCl.lllCUJ,'l.-Uct! while

cal

47 NY2d

[1992] ,

establi

have

eviaence

(see Matter

dah W./ 180 AD2d 45

Here,

afftent ion

whether an

assistance in the same situat

648, 654-655 [1979]; Matter of

lv ed 80 NY2d 751 [1992]).

least two weeks prior to her hospital admission.

reSI)Ol~den"ts admitt , that ld been ill

Even

at

ting

respondent mother's argument that Samantha vomited \\ four or

five times in the two weeks prior to her admission, among other

symptoms, we find that s was enough to put an \\ordina:cily

prudent /I on notice medical attention was requi

54

§ 1012(g) est :L spOnae1'lE! VJho

resided household as for

three talizat

U O.lllCH 1 'L. 110 J S f

from care of Samantha;

t ent of a in the d (see Matter of

D., 88 NY2d 790, 796 [1996]).

, we find acts committed by eS]C)o11dEmt s

demonst an impairment of judgment sufficient to support

derivative f~uu~u~ of abuse and ect tter ., 47

AD3d 5 [2008] I lv NY3d ,2008 NY s 533)

THISOF THE SUPREME COURT, APPELLATE DIVISION,


55

4549 e New 29

Brown,De f C;~lU.C1.11 '- ",-,,-,,--,.lant.

chard Office f the'-'-'l..UlUC:;..L.) ,

llate DeGLlJlJc:..L.lant.

Court, New York

J.) , on or about June 6, 2007, r F 'a:L.. l

Application by appellant's counsel to as counsel is

e v

s

Pursuant to Procedure Law § 460 20,

are no

for leave to to Court of AI)D'ea...L s

ication to ef of that Court and

such ication to Clerk of that Court or to a Just e of

ion of the Supreme Court of on

reasonable notice to respondent within (30) days er

s ce of a copy of s

0.1 the ication

56

nA·rnll SS to

j

er be to j or just ce

OFTHIS CONSTITUTES THE DECISION

SUPREME COURT, APPELLATE ON,ORDER

FIRST


57

, Ma

4550 elant,

I 3 66/

J.P. Home

Marie 1 S o'- .

Pittoni, Bonchonsky & Zano, LLP, Gardenof counsel), for re

(Peter R.

Order, Court, New York ter B. ~ ) !

entered July 25, 2007, ch ed de erla,~nL's motion for

summary judgment ss the complaint,

without costs.

affirmed!

58

S.Lyucu

SyS., 283 AD2d 268, 2 2 [2001] I 98 NY2d 76

[2002] ) ! cannot 1 to

were than as stated.

THIS CONSTITUTES THE DECISION fu~D ORDEROF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.

59

4551 East Best

ago.

0055/0

NY

Cozen 0 1 Connor I New York J.

Warshaw Burstein CohenWiener of ) I

& Kuh, LLP I New York (Bruce H.

Court! New R Edmead, J.) I

entered February 51 2008, which denied defendant I s moU.on for

ial summary jua,qrnen dismiss so of the as

a stay

unct 1 f

1 f

commencement of summary ct

first notice de t, modified, the

upon a aintif summary j

permanent de from to t

lease for 1 defaul Artie e 2, and ocne~rV\TJ se

affirmed, with costs in favor of a iff.

In 2003, plaintiff de p:r:ecieeessor erest

entered into a lease for a store and basement premises for the

purpose of running a "gourmet n food iness. Article 12A

ted pI iff from ass~~H~U~

60

or etting lease

iff ass lease 0 a or

related te i

e transact was not

the

1

1'yy'onri ses . i 1 ai i rom

circumvent the non-ass YYY''',T1 sions of Artic e 12A

a trans t

in, a trans of a "controll !..J.l.et.l.u.Liff's

shares "at anyone time or over a period time through a es

of transfers" 1 be an ass ect to al

1'YY'"';''' sians of icle 2, inc the consent rement.

2005, 1

an of

shares f and anot result one of

them trans s entire 50% erest in ainti f 0

other. Thereafter, the rd r, who held 10% of the

s, a s rC)C'2E:Q:lnQ, which was sett ed

May 2006, when the agreed to buy the

10% interest, thereby becoming plaintiff's so der.

sole remaining shareholder then informed defendant that had

acquired 1 outstCU1U..LLJ.'-j shares, and to assign lease

to a newly created e ent

61

ch would

stat that a f icle 2

30 cure.

PIa iff i for YeLlows tone

i unction, establi I necessary

l S

Partners, 245 AD2d 225, 228-229 [1997];

Ironwood Real . I 102 d 737, 739 [1984] ) After the

State

d & Stern v

. Assoc. vre State(seeransact

for summary

as it related to the claimed

that the two share

ed, defendantwas

the campI

e 12 on theArt

Yellowstone

judgment dismiss

t:r.'ansfers consti asslgnm.en.t the

's was t matt of

aw.

e

ass s restra s al are to

be st ct (Rowe v Great A . & Pac. Tea Co., 46 NY2d

62, 69 [1978]) I we

share transfers

even as

ies to transfers

the restrict

and among

on

who were shareholders at the time the tenant entered

lease, the lease did not require defendant's prior consent to

either of the two share transfers. The two transfers were

dist transact , undertaken ~~,u~ut a year apart for

62

undertaken to trans 1 erest ff

wi consent rcumvent It:':C1.se's non-

ass1.gnm.erlt clause. S ease not

from trans s less

s i f

cl (see I Natural f Ave.

[ ". a1...-'

"' 172 AD2d 331, 334 [1991], 117

] ) .

78 NY2d 1124

Inasmuch as no f issues remain to be

pla iff is entitled to permanent injunctive relief.

THIS CONSTITUTES THE DECISION .AND ORDEROF THE COURT, APPELLATE DIVISION, FIRST DEPARTMENT.


63

4552llant,

2 6

Ci ! et • J

Alexi:tncier J. Wulwick! New York! for appellant.

Gosset I (Lawrence Silver of counsel)!responden

Order! Supreme Court! Bronx County (Kenneth L. Thompson Jr.,

J. ) J ent on or 8! 2008, which

cta jset as

I I f f

set her not of claim!

! on the law facts! without costs,

moti

ist al

confi to

remanded

ct reinst ed, and the matter

issue

iff s f in a e while attclll;J\_..LUY to

board a bus on 14 the Bronx on April 17! 2000. The

9014, 2000, wion orclaim wasnotice

days of the inc In combination with plaintiff's testimony

64

c Law § 50-h i

notice sufficient not ce~

of cl the manner ch it arose, as 1 as

fact t assert a cl of NYCTA's

fe ace 0 (see

York Tr. Auth., 30 F...D3d 289, 291-292 [2006]).

at trial indicated plaintiff was ured le on a direct

from

Ambulette Servo

to front door of the bus (see

., 307 AD2d 860 [2003]). To extent

was any defect plaintiff's notice of claim, NYCTA cannot claim

to been udiced as indicates it

not unue:Lcake any st ion l

8 months er servi a

ement 1 ars, gave

express notice of 1 i i

at trial (see

[2007] ) .

v New York Rous Auth., 2 F.D3d 3,68

We e that the we

65

the at

NYCTA (see McDermott v L . f 9

206 [200 ])

THIS CONSTITUTES THE DECISION AND ORDERTHE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT


66

4553 of New 6 68/04

·-aga

Clarence Burwell,

chard M. Weinste ,New York, appellant.

Burwell, appellant pro se.

M.tz

ct cc,rrley, New York (Jared

Judgment, Supreme Court, New York County (Carol Berkman,

13, 2005, convict de s ea

of I ,of att~""~I_~~ ary in

sentenc , as a persistent ent felony CH.UC:J.., to a

erm of 12 years to Ii aff

The court def'-Hu-u.HI- 's mot to suppress

'r:lL test tness ed the

search of an intYl1(l~r and ice arrested

def""Huuu witness's presence. Even assuming that the

witness's viewing of defendant in custody moments later

considered a showup, this prompt, on-the-scene procedure was

entirely permissible (see e.g. People v Gatling, 38 AD3d 239

be

[2007J, lv denied 9 NY3d 865 [2007]; People v Boutte, 304 AD2d 2d

307 [2003], lv denied 100 NY2d 579 (2003])

ter ficient inquiry, the court

67

ed

s

WYr=>n'r=>y-ick/ 45 NY2d 20 (1978)). re

ness of the ea De 's

, s Ii to iate more

was not a pleaj moreover j

rece sen i

in s situat (see § 70_08[2) [c))

De 's pro se ffect assistance of counsel cl

are e on rect

matters outs the record (see vera, 71 NY2d 705/ 709

[1988) j People v Love/57 NY2d 998 [1982)). On st

record, to the extent it eW I we f

e assis L.UoU\..-·\..- state

(see pp,nP,Vr=>T'to, 1 9

, 86 NY2d 397, 40

66 US 668 [1984

[1995] j see also S

THIS CONSTITUTES DECISION P.J\JD ORDEROF THE SUPREME COURT I APPELLATE DIVISION, FIRST DEPART~![ENT.


68

z

554 Karen o 53/

Bar!

625 ets.

• 1

Molod Spitz & DeSantis, P.C., New) J ant.

(Marcy of

M. Smi , New York, for Karen dan,

Thomas D. Hughes, New York (David D. Hess of counsel), for 625Management Committee, Sheila Daley and 625 Madison Associates,L.P., respondents.

Order l Court, New

\1 1 ! 2008 1 which

for -v-=.CO."-,<11rY),,,,,.,,t-, and, upon

motion to smiss

a iff's lure to scovery, and re

complaint, unanimous affirmed, without costs.

The mot court exerci its scre

granting reargument and re at the complaint. Plaintiff's

moving papers clarified certain facts relat to the extent of

her compliance with discovery, including the court's directives

concerning nonparty witnesses and the filing of a note of issue,

prior submissions and opposit

69

to s' motion

(see • j

AD2d 410 [1985]) Even if ~Q~LJGiff's mot on cannot sa

f 1 of either

court's it 1

its

[1987] )

scretion (see 130 AD2 649, 65

We have cons

them unavail

C-C"-'''-''--..l.lant IS u.",,--u.,-i:;) and f

THIS CONSTITUTES THE DECISION P~~D

OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.


70

• J Ma

4555 et al. J 23 24/

Ison,Def'Vuu.uu

et . ,llants,

ty . ,

lace D. Gossett,appellants.

ta Isola of counsel), for

Peter J. i s, Bronx, for respoD.QE:nts.

Order, Supreme Court, Bronx County ( S. Schachner, J.),

31, 2007, vvu~'Vu, to the extent df:JPE::dJ.ed from as

I efs, ~U~"j,,-iffs' ate

ir to

lson New York

costs.

ty Transit I unanimous affirmed,

The court its discretion under CPLR

5015 (a) (1) reinstatement. PI iffs a

'Vv,w,~u~<~,~e excuse (see e.g. Navarro v A. Estate, Inc.,

279 AD2d 257, 258 [2001]) missing a calendar call, at which

they had been to appear unless filed a note

issue. Plaintiffs l counsel averred that prior to the scheduled

conference he had made a good th attempt to file a note of

issue wi the court, and that he re-sent

71

note of issue to

erroneous as that

fil case was s

suffi

t. We do not read mot court's

cons

e isi

issue of

l

THIS CONSTITUTES THE DECISION A1~D ORDEROF THE SUPREME COURT I APPELLATE D S ON 1 FIRST DEPp.RTlvIENT


72

At a term of the Appellate Division of heSupreme Court held in and for rstJudicial Department the County ofNew York, entered on November 13, 2008.

Present - Hon. Peter Tom,Angela M. MazzarelliDavid B. SaxeEugene NardelliJohn T. Buckley,

___________________________x


-against-

Seth Ritchie,Defendant-Appellant.

x-----

Justice Presi

Justices.

Ind. 39431C/05

4556

An appeal having been taken to this Court by the above-namedappellant from a judgment of the Supreme Court, Bronx County(Steven L. Barrett, J.), rendered on or about October 16, 2007,

And said appeal having been argued by_ counsel for therespective parties; and due deliberation having been had thereon,

It is unanimously ordered that the judgment sobe and the same is hereby af rmed.

ENTER:


duuc;'d-Led rom

455745584559N C rile Ion

as Trustee, . ,I

Rece

HSBC

Moraa iffs,

Bank-ro.uuc-:ll

, et al. J

s,

Samuel Montagu & Co. Limited, et al.,De s.

Stempel Bennett aman &Claman counsel), for

., NewBank AG,

(Ri L.llant.

MoraNew (e

.V , Chascona .Vo Cavazza, appellants

counsel), for

Rose LLP, New York (Sarah S Gold of counsel), forspondents.

Order, Court, New York (Herman , J.),

ent 19, 2007, ia, the motion

of pI iffs CIBC Mel Trust Co. and ler Canada, Inc. to

smiss certain affirmative defenses defC::llua.~H.. s HSBC

Guyerzeller Bank AG, Mora Hotel Corp. N.V. and Chascona N.V.,

unanimous modifi , on the law, to reinstate ~lnJc.r'7""ller'S

sixth affirmative fense, and otherwise affirmed, wi costs.

Order, same court Justice, ent

74

ember 5, 2007,

Cavazza

Investment I di ss the a

j ct ffi thout costs

In a nt

er al

s fund Castor

Inc. J

1 ' .,WillCh was ater reveal to be a Ponzi

Default juctgrnen s s Mora and were

entered in ish were y

recognized in s State (see CIBC Mellon Trust Co. v Mora Hotel

cert

to

[2003] J

er

[2002] J affd 100 NY2d 215"' 296 AD2d 81

540 US 948 2003]).

icular, the ch was j owned

Mora However, e is

a exist lien in avor of de CLiU(:;Uit ze er.

Chrysler cont that the normal lien priori d be

the was a ce to Mora

Chascona from their judgment creditors the underlying Castor

HoI case, was an unneces "'double enCL:lmJ:)ri:l.nCe, II because

mortgagee had available at all times a counterbalance its

ish bank securing same loan, and was otherwise y

and

75

cona

e whether

ler's al

(see

ies di

de of unclean

Ie

1248, 125 [SD NY 1 95], affd 10

Chascona lS

were ies to i

t to i

the Castor

22 9

t Co. r Inc. , 99

F3d 352 [2d 1996] )

lerfs affi

not dismissed.

doctrine of unclean hands can be applied to a transfer to avoid

tors' claims lS no all of ury (compare

ower 1 NY2d 3 956]. / ,

2 58 9 5 ) ler, , /

I ury insofar as t as that it never have

funded transacti had

to

ty.

and that i willCastor

it loses its secured

icat of the s not warranted

because its conduct with respect to Castor Holdings was ent

separate from the mortgage transaction, which it had no

involvement (see Weiss, 1 NY2d at 316). However, Chrysler

alleges that the mortgage transaction was designed to conceal

fruits the Castor Holdings fraud to hide Mora's and

76

of i court.

er ·nr\/Qle:r.~! S

conduct to Cast

transac'c

The of za

are the j court s State

is belied by the record, which es that Cavazza and

purpose act York st

a New and a on New York

property (see CPLR 302 [a] [1] i Kreutter v McFadden Oil Corp., 71

NY2d 460, 467 [1988] i CPLR 302 [a] [4] i 5-Star / Inc. v

940 F 2, 16- 7 NY 996) Moreover, amended

f auu.vc-,-ent of a New York

their New York co rators, to

an unnecessary $10.2 mill st

Mora

ent to hinder

er, at a t

was made with

as

leri that

torst1

Chascona were aware that creditors would likely seek to recover

their assetsi that it involved use of dummy corporat

intermediariesi and that the consideration was inadequate because

Cavazza and Chi ue received both a $10.2 million debt posit

77

$10.2 i

Cavazza

state (see CPLR 302 [a] [2 v Chan; 169

se 20. 82 996] ! 240 AD2o. 253 [1997]) lson v

, ! 5 9 1 v

I.H " Inc.! 114 AD2o. 4 4 [1985

THIS CONSTITUTES THE DECISION A~D ORDEROF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.


78

SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT,

Eugene Nardelli,Milton L. WilliamsJohn W. Sweeny, Jr.James M. Catterson,

2985 2985AIndex 402200/05

x-------------------------

Amin Marte,Plaintiff-Respondent,

-against-

Sandra Graber, as voluntary administratorof the estate of Herman Graber, deceased,

-Appellant.________________________x

J.P.

JJ.

Defendant appeals from an order of the Supreme Court,New York County (Barbara R. Kapnick, J.),entered April 3, 2007, which grantedplainti 's motion to amend summons andsubstitute the voluntary administrator forthe deceased defendant, and denieddefendant's motion to dismiss the compl nt,and from an order, same court and Justice,entered August 14, 2007, which uponreargument, adhered to the prior order.

Ronald Cohen, New York, for appellant.

David M. Goldberg, Amenia, for respondent.

CATTERSON, J.

Because there simply is no precedent nor any support in New

York's Civil Practice Law and Rules for a court obtaining

jurisdiction over an action "commenced" three months after the

death of the individual named as the sole defendant, we nd that

the order appealed from is a nullity. The complaint should have

been dismissed by the motion court as a nullity when the putat

plaintiff, having filed a summons and complaint, discovered that

the named defendant had died before the filing. As is, this

matter arrives before this Court as a result of a volume of

errors rarely seen in this Department, and which are set h

below, seriatim.

In or around July 2005 Amin Marte, ipcarcerated and act

pro se, filed an unsigned, undated summons and complaint alleging

legal malpractice by attorney Herman Graber. Thereafter, Marte

discovered that Graber had died on April 2, 2005, approximately

three months before the filing of the summons and compla Thus

the action from its inception was a nullity since it is well

established that the dead cannot be sued. Jordan v. City of

New York, 23 A.D.3d 436, 437, 807 N.Y.3.2d 595, 597 (2d Dept.

2005) ("party may not commence a legal action or proceeding

against a dead person, but must instead name the personal

2

representative of the decedent's estate"); see

Chun Kuei Wu, 18 A.D.3d 583, 795 N.Y.S.2d 327 (2 nd Dept. 2005);

Laurenti v. Teatom, 210 A.D.2d 300, 301, 619 N.Y.S.2d 754, 755

Marte, however, moved by order to show cause for what he

termed a "stay" in order to ascertain the identity of Graber's

personal representative. The court, apparently interpret

as an application for an extension of the statutory 120-day

this

period for service, issued an ex parte order extending Marte's

time to serve. Subsequently, it issued a second ex parte order

extending the time for service through July 2006. Thus, the

court adjudicated a nullity apparently unaware that time was not

the problem in a case where only named, de could never

be served with the summons and complaint, however long

plaintiff was given to do so.

Arguably, it is not clear from the record if the court was

informed in Marte's application that Herman Graber had died prior

to the filing of the summons and complaint as well as prior to

service. However, even if the court at that point believed that

lIt is important to acknowledge that at common law virtuallyall causes of action abated with the death of a party. ~

Demuth v. Griffin, 253 A.D.399, 2 N.Y.S.2d 2 (1 st Dept. 1938).That was the law in New York until September 1, 1935 when theLegislature enacted a series of statutes to ameliorate the harsheffect of the common law.

3

the summons and complaint had been filed while Graber was a

it, nevertheless, would have been in error issuing any order at

all since all orders rendered after the death of a defendant,

even in a properly commenced action, are void until an order

granting substitution. See CPLR 1015(a)i see also

Consolidated Edison Empls. Mut. Aid Socy., 112 A.D.2d 819, 492

N.Y.S.2d 619 (1st Dept. 1985) (the death of a party divests a

court of jurisdiction to conduct proceedings in an action until a

proper substitution has been made) .

In any event, on June 7, 2006, Marte, now represented by an

attorney, moved pursuant to CPLR 1021 to substitute Herman

Graber's wife, Sandra, who had been appointed personal

representative of the estate. He also moved leave to

the summons pursuant to CPLR 305(c). He attached the proposed

amended summons to the motion together with a fi

complaint as of right alleging breach of contract rather than

legal malpractice, presumably to avoid any statute of 1 tations

objections.

The motion court, compounding its errors, continued to

adjudicate the nullity by granting the motion, and thus ignoring

the requirement of CPLR 1015(a) that an action be pending the

correct application of that provision. CPLR 1015(a) provides

that "[i]f a party dies and the claim for or against him is not

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thereby extinguished the court shall order substitution of the

proper parties" (emphasis added). Moreover, CPLR 1021 provides

that "[a] motion for substitution may be made by the successors

or representatives of a party or by any party" (emphasis added).

The term "party" plainly indicates that an action has already

been properly commenced and is pending and thus the court may

effect substitution.

In this case, since the summons and complaint were filed

after the death of Herman Graber, Marte had not properly

commenced an action against Graber, and so Graber was never a

party in the proceeding captioned Amin Marte v. Herman I. Graber,

Index No. 402200/05. Thus, there was no party for whom

substitution could be effected pursuant to CPLR 1015(a).

Likewise, Marte's attempt to amend the summons pursuant to

CPLR 305(c) was made in error. That provision is generally used

to correct an irregularity, for example where a aintiff is made

aware of a mistake in the defendant's name or the wrong name or

wrong form is used. But it is axiomatic that a motion for leave

to amend follows service of process. See Louden v. Rockefeller

Ctr. N., 249 A.D.2d 25,670 N.Y.S.2d 850 (pt Dept. 1998);

Ingenito v. Grumman Corp., 192 A.D.2d 509, 596 N.Y.S.2d 83 (2d

Dept. 1993); see also Stuyvesant v. Weil, 167 N.Y. 421, 60 N.E.

738 (1901). In this case, of course, process was never served on

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Herman Graber (nor are we aware of any method for serving with

process those who have moved beyond the vale). Thus, ef ct ly

there was no summons for amendment.

Subsequently, Sandra Graber filed a notice of appeal and a

motion to reargue which the plaintiff opposed. The motion court

granted the reargument but ignored Sandra Graber's contention

that the proceeding was a null y from s inception.

Incomprehensibly so, since the court's decision of August 14,

2007, bearing the caption of Amin Marte against Sandra Graber!

clearly re ected the fact that Herman Graber had died on 1

2, 2005, and that the only summons and complaint filed in this

case had been filed on July 6, 2005.

In a final disregard of the CPLR the motion court

acknowledged in its decision that while the initial summons and

complaint had been led but not served, the "filed" amended

summons and complaint "appear[ed]" to have been served by

substituted service. In reality, they were merely annexed to

plaintiff's motion and not filed with the County Clerk. CPLR

304; Matter of Gershel v. Porr, 89 N.Y.2d 327, 653 N.Y.S.2d 82,

675 N.E.2d 836 (1996); see also Chiacchia & Fleming v. Guerra,

309 A.D.2d 1213, 765 N.Y.S.2d 134 (4 th Dept. 2003), Iv. denied, 2

N.Y.3d 704, 778 N.Y.S.2d 774, 811 N.E.2d 36 (2004) (plaintiff's

failure to obtain new index number could not be corrected nunc

6

pro tunc because there was no action pending) . Perhaps, had

Marte abandoned his initial action, and properly filed a summons

and complaint by purchasing a new index number and naming Sandra

Graber, the personal representative of Herman Graber, as

defendant, the matter before us would not be the nullity is.

Accordingly, the order of the Supreme Court, New York

County (Barbara R. Kapnick, J.), entered August 14, 2007, which,

upon reargument, adhered to a prior order, same court and

Justice, entered April 3, 2007, granting plaintiff's motion to

amend the summons and substitute the voluntary administrator for

the deceased defendant, and denying defendant's motion to dismiss

the complaint, should be reversed, on the law, without cos s, and

the plaintiff's amended summons and compla~nt di ssed as a

nullity. The appeal from the April 3 order should be dismissed,

without costs, as superseded by the appeal from

order.

All concur.

August 14

THIS CONSTITUTES THE DECISION AND ORDEROF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.


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