Notice to Admit: The Power of a Piece of Paper

Posted on May 1, 2011 by Richard Klass

In the Civil Practice Law and Rules (CPLR) – the “Game Book” of civil practice in New York State courts, there is a little-used device called the “Notice to Admit.” While not as often utilized by attorneys as it ought to be, it can pack a powerful punch to the other side in litigation.

As most of us know, the old days of Perry Mason pulling out a trick at trial have greatly diminished due to the introduction into the legal process of a phase in the litigation known as “discovery.” During the discovery phase, each adversary is permitted to inspect and “discover” relevant documents and information pertaining to the lawsuit, through the use of various discovery techniques. Those discovery techniques may include, among other things, inspecting the books and records of a business, asking questions known as “interrogatories,” performing a physical examination, viewing photographs or videos made of the scene of an incident, and inspecting the geographic location of an area which is the subject of the litigation. Among those discovery techniques, there is the Notice to Admit.

CPLR Section 3123 provides that: “a party may serve upon any other party a written request for admission by the latter of the genuineness of any papers or documents, or the correctness or fairness of representation of any photographs, described in and served with the request, or of the truth of any matters of fact set forth in the request, as to which the party requesting the admission reasonably believes there can be no substantial dispute at the trial and which are within the knowledge of such other party or can be ascertained by him upon reasonable inquiry.” It is further provided that, if the latter party fails to respond, the effect is that the matter shall be deemed “admitted.”

In Rodriguez v. Moreno, it was alleged that, in 1994, the owner of a 2-family house in Brooklyn had to leave this country in a hurry and needed cash. He made an agreement with his tenant that, in exchange for $30,000 cash and the continued payment of the mortgage on the house, the tenant could effectively purchase the house from him. To memorialize their understanding, the owner and his tenant went to the owner’s attorney to sign documents.

The owner’s attorney drafted the documents necessary to transfer title to the house, including a Deed. The owner signed the documents, and the attorney held onto the originals. The agreement was, once the tenant paid off the last of the mortgage payments on the house, the Deed would be released to him from the attorney’s escrow. This arrangement continued for 13 years.

In 2007, the tenant discovered that the owner, who still held title to the house, was trying to sell it to someone else. The only proof of the agreement he had was a photocopy of the front side of the Deed that the owner signed 13 years earlier. Unfortunately, the owner’s attorney had been disbarred years earlier and was nowhere to be found; also gone were the original documents.

Quick Action Was Needed

Armed with only a skimpy photocopy of the first page of the Deed, which had the signature of the owner, the tenant hired Richard A. Klass, Esq., to bring an action under New York’s Real Property Actions and Proceedings Law (RPAPL) to enforce his rights to the house. Since the owner was actively trying to sell the house, and had signed a contract to sell the house to someone else, quick action to stop the sale was needed. With the filing of the Summons and Complaint, a Notice of Pendency (also known as a “lis pendens”) was filed against the house, which operates as notice to outsiders that someone is laying claim to ownership of the house.

The owner denied the agreement, since there was no proof of the agreement between himself and the tenant. He also claimed that the mortgage payments made by the tenant were intended as rent.

Proving the Copy To Be a Duplicate of the Original

The next, important step was to nail down through the discovery phase the proof of the agreement. In general, contracts relating to the sale of real estate require written proof under a legal doctrine known as the Statute of Frauds. Since here, there was no writing other than the photocopy of the Deed, the lawsuit appeared to be futile.

The admissions requested were as follows:

That the attached Deed was signed by the defendant on September 1, 1994.
That the attached Deed was prepared by the defendant’s attorney, or on his behalf by a member of his staff or office.
That the defendant’s attorney prepared the attached Deed at the request of, or on behalf of the defendant.
That the original of the attached Deed was taken into escrow by the defendant’s attorney at or about the time of execution thereof.

Despite being served with this Notice to Admit, the defendant failed to respond to it within the 20-day time frame in which to respond. By virtue of his not timely responding, the above allegations were deemed “admitted.”

Since it was now admitted that the owner signed the Deed in favor of the tenant, and the Deed was to be held in escrow by his attorney, the terms of the agreement were arguably established in a manner allowed by the Statute of Frauds. Coupled with the fact that the tenant made all of the mortgage payments for 13 years, the owner elected to settle the case instead of proceeding to trial.

Richard A. Klass, Esq.

copyr. 2011 Richard A. Klass, Esq.
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Richard A. Klass, Esq., maintains a law firm engaged in civil litigation at 16 Court Street, 28th Floor, Brooklyn Heights, New York.
He may be reached at (718) COURT-ST or e-ml to RichKlass@courtstreetlaw.comcreate new email with any questions.
Prior results do not guarantee a similar outcome.

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Getting it Done: The Importance of Entering Timely Defaults

Posted on March 14, 2011 by Richard Klass

In 2004, a guy went out for a night of drinkin’ on the town. On the way home, he stopped in to one last bar to drink. At the bar, in a very drunk condition, he hit on a woman. After leaving the bar to go home, he saw standing by a nearby building a woman who he thought was the same one as the one in the bar. When the guy saw the woman on the street, thinking it was the one he saw in the bar, he grabbed and touched her. Unfortunately, it turned out that she was not the same woman—and she pressed charges of assault.

Naturally, the woman claiming assault not only sought criminal charges but also brought a civil action to recover damages from the guy. She brought the law suit against him through her lawyer in 2004. The defendant failed to answer the complaint after being served; however, her lawyer did not ask the judge to enter a default against the guy until 2006 – two years later. In support of the request for the default judgment, the lawyer stated that the woman had left New York to return to her native country because she was emotionally distraught over the assault and did not return until 2006. The judge granted a default judgment for the woman’s pain and suffering for $1,000,000.

The relevant New York statute governing default judgments, CPLR 3215, provides that, when a defendant has failed to appear in an action, the plaintiff may seek a default judgment against him. However, the plaintiff is required to do so within one year after the default, as required by subsection (c) thereof:

Default not entered within one year: If the plaintiff fails to take proceedings for the entry of judgment within one year after the default, the court shall not enter judgment but shall dismiss the complaint as abandoned, without costs, upon its own initiative or on motion, unless sufficient cause is shown why the complaint should not be dismissed. A motion by the defendant under this subdivision does not constitute an appearance in the action.

According to the above subsection, the court should have dismissed the complaint as abandoned, based upon the woman’s failure to take proceedings for the entry of default within one year. Numerous cases have held that dismissal of the complaint is required when there has been a failure to take timely proceedings for entry of default. See,Saunders v. Central Brooklyn Coordinating Council, Inc., 273 AD2d 294 (2d Dept. 2000); PM-OK Associates v. Britz, 256 AD2d 151 (1st Dept. 1998).

Plaintiff must show a justifiable excuse

The Second Department held, in Winkelman v. H&S Beer and Soda Discounts Inc., 91 AD2d 660 (1982), that, absent a justifiable excuse and a showing that the action is meritorious, the plaintiff’s failure to enter a default judgment against the defendant within one year of the latter’s default mandates dismissal of the action against defendant as abandoned. In the affirmation of the woman’s attorney, he stated:

“ That shortly after the Summons and Complaint was served, the Plaintiff, suffering from emotional stress and trauma based on the underlying assault and battery complained in this action, left the United States for her home country of Spain, as Defendant resided in the same neighborhood as Plaintiff, and Plaintiff, in fear of her safety and mental well-being, withdrew from the country. ”

In Herzbrun v. Levine, 23 AD2d 744 (1st Dept. 1965), the Court held that the plaintiff’s excuse that she was forced to move to West Germany shortly after the action was commenced was not sufficient cause to excuse the failure to comply with the provisions of CPLR 3215. In Sortino v. Fisher, 20 AD2d 25, 30 (1st Dept. 1963), the court stated that “[T[he duty of prosecuting …. (an) action rests upon the (person) who brings it, not the (party) who defends it.” In that case, the court stated that “there is an intimate relationship between the merit of an action and the fact that it has been neglected.” This is the reason why an affidavit is needed because it must be “as good as the kind of affidavit which could defeat a motion for summary judgment on the ground that there is no issue of fact.” As Justice Breitel wrote in the decision: “Given the delay, he has a double burden; to justify the delay and to lend credit to the proferred justification by establishing merit.” Further, “Even an action of great merit may be forfeited by prolonged delay. It is the right of a defendant to be free of a case which is not diligently prosecuted. For obvious reasons, it is very rare and quite perverse that an action of merit is not diligently prosecuted.”

Richard A. Klass, Your Court Street Lawyer, brought a motion, termed an “Order to Show Cause,” to vacate the default judgment and dismiss the action. The motion stated that the excuse of the plaintiff for not entering the default within one year (that the woman suffered from emotional stress) had absolutely nothing to do with the requirement that her attorney should have moved for the default within one year since he proceeded on the Verified (or sworn) Complaint of his client and did not need any further sworn affidavits from her to obtain the default judgment.

In response to the Order to Show Cause, the plaintiff capitulated and agreed to settle the ‘Million Dollar’ case for a mere $7,500 to avoid further litigation!

by Richard A. Klass, Esq.
Your Court Street Lawyer

R. A. Klass
Your Court Street Lawyer

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What Is a “Traverse” Hearing and Why Is It Important

Posted on January 12, 2011 by Richard Klass

Recently, I had the opportunity to successfully represent a client at a traverse hearing in the Civil Court. This article will illustrate the purpose and effect of such a hearing.

A ” traverse ” is a hearing conducted by a judge to determine whether the defendant was properly served with the Summons in the action. The ultimate result of such a hearing will be a determination that either the defendant was properly served and, therefore, must answer the Complaint, or that the defendant was not properly served and the action is deemed dismissed. Sometimes, this is the critical part of a case, especially where the time to commence a new action against the defendant has passed by virtue of the applicable statute of limitations.

In PRA III LLC v. Weisel, I represented the defendant, who claimed that the first time he learned of the existence of the case was when he received a copy of the judgment from the plaintiff’s counsel. Importantly, he claimed that he was never served with the Summons and Complaint by a ” process server, ” or someone authorized to serve such papers. [A “process server” in particular is someone who serves more than five Summonses within a year].

At the hearing, the process server was called to testify about his prior affidavit where he claimed that he served the Summons upon my client. The process server indicated on the affidavit he posted the Summons on the outer door of the defendant’s house, which may be permissible according to the statute. However, the defendant testified that he resided in the second floor apartment of a three-apartment house, and that the bells outside the common door are clearly marked with the occupants’ names. Service by posting the Summons on the outside door was deemed insufficient in this situation.

The service was also challenged in two other ways, which proved successful:

Firstly, process servers are required to maintain a “log book,” in which they note where and when they served process (or attempted to serve process unsuccessfully). Here, the process server’s log book did not contain any entry for the date of the alleged service of process.

Secondly, the defendant resided on a block in Boro Park, Brooklyn, which the process server conceded was a heavily Sabbath-observant Jewish neighborhood. By law, service of process on a Saturday upon someone whom the process server knows or should know to be Sabbath-observant is deemed defective.

The end result of the traverse was that the service of the Summons was not sustained as valid, and the action was dismissed. Now, the plaintiff is required to commence a new action if it wants to attempt collection of the debt (perhaps with a more diligent process server!).

by Richard A. Klass, Esq.
“Your Court Street Lawyer”
Copyright 2005

Richard A. Klass, Esq., maintains a law firm engaged in civil litigation at 16 Court Street, 28th Floor, Brooklyn Heights, New York. He may be reached at (718) COURT-ST or RichKlass@courtstreetlaw.com with any questions. Prior results do not guarantee a similar outcome.

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Richard A. Klass, Esq. maintains a law firm engaged in civil litigation at 16 Court Street, 28th Floor, Brooklyn Heights, New York. He may be reached by phone at (718) COURT-ST [(718) 268-7878)] or RichKlass@courtstreetlaw.com with any questions. Prior results do not guarantee a similar outcome.

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Obtaining Leave of Court to Submit Evidence in Reply Papers for ‘Good Cause Shown’

Posted on December 23, 2010 by Richard Klass

In litigation, parties may bring motions for dismissal of the action or affirmative defenses, or move for ‘summary judgment’ (that there are no genuine issues of fact and the judge can decide the case on the law alone). Generally, the moving party puts forward all of its proof in support of its motion, including any affidavits, documents or photographs. The opposing party then puts forward all of its proof. At that point, it is inappropriate for either party to provide additional facts in reply papers, as courts want to give each party an opportunity to properly respond to the facts alleged in the original papers. It would otherwise be unfair.

Sometimes, however, additional facts or proof become necessary for various reasons. In that situation, the party seeking to provide additional proof must show “good cause” for having to do it.

Pursuant to binding Appellate Division, First and Second Department precedents, supplemental affirmations and/or sur-reply’s are permissible upon leave of the court with good cause shown, particularly where (1) the movant submits evidence for the first time in its reply papers or (2) “where the offering party’s adversaries responded to the newly presented claim or evidence [citations omitted].” Kennelly v. Mobius Realty Holdings LLC, 33 A.D.3d 380, 381-382, 822 N.Y.S.2d 264, 266 (1st Dep’t 2006); see Gastaldi v. Chen, 56 A.D.3d 420, 420, 866 N.Y.S.2d 750, 751 (2d Dep’t 2008) (“The Supreme Court providently exercised its discretion in considering the surreply of the plaintiffs, which was in response to the gap-in-treatment argument raised in the defendants’ reply papers for the first time (see Allstate Ins. Co. v. Raguzin, 12 A.D.3d 468, 469, 784 N.Y.S.2d 644).”); Hoffman v. Kessler, 28 A.D.3d 718, 719, 816 N.Y.S.2d 481, 482 (2d Dep’t 2006) (“Further, the court properly considered the affidavit of a medical expert submitted by the plaintiffs in reply papers because the defendants had an opportunity to respond and submit papers in sur-reply (see Guarneri v. St. John, 18 A.D.3d 813, 813-814, 795 N.Y.S.2d 462; Matter of Hayden v. County of Nassau, 16 A.D.3d 415, 416, 790 N.Y.S.2d 404; Basile v. Grand Union Co., 196 A.D.2d 836, 837, 602 N.Y.S.2d 30; Fiore v. Oakwood Plaza Shopping Ctr., 164 A.D.2d 737, 739, 565 N.Y.S.2d 799, affd. 78 N.Y.2d 572, 578 N.Y.S.2d 115, 585 N.E.2d 364, cert. denied 506 U.S. 823, 113 S.Ct. 75, 121 L.Ed.2d 40).”); Anderson v. Beth Israel Medical Center, 31 A.D.3d 284, 288, 819 N.Y.S.2d 241, 244 (1st Dep’t 2006); Traders Co. v. AST Sportswear, Inc., 31 A.D.3d 276, 277, 819 N.Y.S.2d 239, 240-241 (1st Dep’t 2006) (“Defendants also belatedly submitted papers containing a security deposit argument without demonstrating good cause (CPLR 2214[c] ), which was improperly relied upon by the IAS Court (see Pinkow v. Herfield, 264 A.D.2d 356, 358, 695 N.Y.S.2d 20 [1999]).”).

Further binding Appellate Division, Second Department precedents hold that “[c]ontrary to the [movant’s] contention, the court did not err by considering the evidence in the [cross-movant’s] reply papers because it was submitted in direct response to allegations raised in their opposition papers [citations omitted].” Conte v. Frelen Associates, LLC, 51 A.D.3d 620, 621, 858 N.Y.S.2d 258, 260 (2d Dep’t 2008); see Jones v. Geoghan, 61 A.D.3d 638, 639, 876 N.Y.S.2d 508, 510 (2d Dep’t 2009) (“Although the appellants expressly raised a defense based on the emergency doctrine for the first time in their reply papers, we may consider it on appeal. In the first instance, the defense was raised in direct response to the allegation made in the plaintiff’s opposition papers that the decedent was struck by a van in motion, rather than thrown into the path of a stopped van (see Conte v. Frelen Assoc., LLC, 51 A.D.3d 620, 621, 858 N.Y.S.2d 258; Ryan Mgt. Corp. v. Cataffo, 262 A.D.2d 628, 630, 692 N.Y.S.2d 671; see also Kelsol Diamond Co. v. Stuart Lerner, 286 A.D.2d 586, 587, 730 N.Y.S.2d 218).”); Ryan Management Corp. v. Cataffo, 262 A.D.2d 628, 630, 692 N.Y.S.2d 671, 672 (2d Dep’t 1999) (“The defendant characterized the evidence in the reply papers as new evidence not properly before the court. Accordingly, the defendant argued, the court erred in granting summary judgment to the defendant. …Because the evidence submitted by the plaintiff in its reply papers was in direct response to allegations raised by the defendant in his opposition papers, it was properly considered by the court.”).

In a recent action litigated by Richard A. Klass, Your Court Street Lawyer, the defendant submitted photographs of a sign with defendant’s reply affirmation, after plaintiff’s opposition and cross-motion had been submitted, as evidence that the entrance near a certain street, within 50-60 feet of which plaintiff had repeatedly testified his accident occurred, was located at another street, thousands of feet away. In his reply affirmation on his cross-motion, not in a sur-reply, plaintiff requested leave of this Honorable Court to submit (a) further photographs clearly depicting the entrance gate at the particular street indicated, with an identical sign about which he had been testifying, adjacent to which plaintiff testified his accident occurred in his EBT, as well as (b) a supplemental affidavit from plaintiff, authenticating these photographs as fair and accurate representations of the entrance about which he had testified. Accordingly, as the evidence (a) was submitted with a reply affirmation on his cross-motion, not a sur-reply, (b) plaintiff properly asked leave of the court to submit additional evidence in his reply on his cross-motion, in order to respond to the photograph submitted in defendant’s reply on the underlying motion, and (c) defendant has availed itself of the opportunity to respond thereto, this evidence is properly before this Honorable Court. See Gastaldi, 56 A.D.3d at 420, 866 N.Y.S.2d at 751; Conte, 51 A.D.3d at 621, 858 N.Y.S.2d at 260; Kennelly, 33 A.D.3d at 381-382, 822 N.Y.S.2d at 266; Traders Co., 31 A.D.3d at 277, 819 N.Y.S.2d at 240-241.

R. A. Klass
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Striking the Affirmative Defense of Statute of Limitations in a Legal Malpractice Action

Posted on December 17, 2010 by Richard Klass

When a former client sues his attorney for legal malpractice, the defendant-attorney/law firm will almost invariably put forward, as part of its defense of the law suit, the Affirmative Defense of Statute of Limitations. In New York State, the period in which an attorney may be sued (whether for a tort [civil wrong] or breach of contract) is generally three (3) years from the date of malpractice. If the client does not sue the attorney/law firm within the applicable Statute of Limitations period, then the case is “time barred” and may be dismissed as having been filed too late.

When the defendant attorney alleges in his Answer to the law suit that the action is barred by the Statute of Limitations, it is essential to deal with the issue as soon as practicably possible. One effective way is to make a motion to the trial judge to “strike” (or dismiss) the Affirmative Defense from the Answer. Civil Practice Law and Rules [CPLR] Section 3211(b) provides that a party may move to strike an affirmative defense.

Affirmative Defense – Statute of Limitations:

In a recent case, the defendant law firm asserted the Affirmative Defense that the legal malpractice action was barred by the applicable statute of limitations. In response, Richard A. Klass, Your Court Street Lawyer, brought a motion to dismiss the Affirmative Defense. The motion requested that this affirmative defense be stricken, since it was alleged that the plaintiff-injured person brought the action within the applicable three-year statute of limitations period, as specified in CPLR 214(6).

CPLR 214(6) provides that “an action to recover damages for malpractice, other than medical, dental or podiatric malpractice, regardless of whether the underlying theory is based in contract or tort” must be commenced within 3 years.

The cause of action for malpractice accrues at the time of the act, error or omission. See, Julian v. Carrol, 270 AD2d 457 [2d Dept. 2000]; Goicoechea v. Law Offices of Stephen Kihl, 234 AD2d 507 [2d Dept. 1996]; Shumsky v. Eisenstein, 96 NY2d 164 [2001].

In the recent case, the allegation of legal malpractice against the defendant law firm was that there was a ‘blown’ statute of limitations because the law firm did not timely sue the potentially liable party. In that situation, the New York State Court of Appeals (New York’s highest court) has held that a cause of action for legal malpractice accrues against the attorney when the statute of limitations expires on the underlying action for which the attorney was retained. See, Shumsky v. Eisenstein, supra. In Burgess v. Long Island Railroad Authority, 79 NY2d 777 [1991], the Court of Appeals held:

A person has one year from the date a claim accrues to commence an action against a public authority such as LIRR (Public Authorities Law Section 1276(2). The complaint must contain an allegation that at least 30 days have elapsed since the authority was presented with a demand or claim and that the authority has neglected or refused to adjust or pay the claim. This “stay” of 30 days is not counted as part of the limitations period and the plaintiff therefore may serve a complaint at any time up to one year and 30 days after the claim has accrued.

In the case, the plaintiff’s incident was alleged to have occurred on June 4, 2003. According to Public Authorities Law §1276, an action would have to have been brought against the LIRR within one year and thirty days after the incident. The defendant law firm was alleged to have failed to timely do so and the time in which to do so passed on their ‘watch.’

The Continuous Representation Toll:

The accrual of the three-year statute of limitations is ‘tolled’ during the period of the lawyer’s continuous representation in the same matter out of which the malpractice arose under the theory that the client should not be expected to question the lawyer’s advice while he is still representing the client. See, Lamellen v. Kupplungbau GmbH v. Lerner, 166 AD2d 505 [2d Dept. 1990]; Shumsky v. Eisenstein, supra. Under the continuous representation doctrine, there must be clear indicia of an ongoing, continuous, developing, and dependent relationship between the client and the lawyer. See, Kanter v. Pieri, 11 AD3d 912 [4 Dept. 2004]; Lamellen v. Kupplungbau GmbH v. Lerner, supra; Clark v. Jacobsen, 202 AD2d 466 [2 Dept. 1994].

In the case, the defendant law firm was alleged to have continuously represented the injured plaintiff up until August 2007, as represented by the proceedings brought on his behalf and the correspondence between the parties. Accordingly, the Statute of Limitations in which to sue the defendant law firm for legal malpractice for having missed the opportunity to have sued the proper party for the incident that resulted in the client’s injury started ticking when the law firm no longer represented him.

R. A. Klass
Your Court Street Lawyer

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