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CPLR 308(5) April 3, 2020

Fontanez v PV Holding Corp., 2020 NY Slip Op 02173 (1st Dept. 2020)

This one is interesting as I encounter these 308(5) cases and I get different results depending on who the the judge is.

“The motion court properly determined that service upon Mr. Yu pursuant to CPLR 308(1), (2), or (4) was impracticable. Plaintiff served the summons and complaint on the Secretary of State of New York and mailed notice of this service with a copy of the pleadings to defendant Yu by registered mail to his last known address. She also hired a process server, who attempted to obtain Mr. Yu’s address through the Department of Motor Vehicles and through people search databases, including “Premium People Search” and “IRB Search.” Further, the motion court properly concluded that plaintiff’s attempts to serve through the Chinese Central Authority in accordance with the Hague convention would have been futile because she did not have defendant’s correct address (see Born To Build, LLC v Saleh, 139 AD3d 654, 656 [2d Dept 2016]). Plaintiff was not required to show due diligence to meet the impracticability threshold under CPLR 308(5) (see Franklin v Winard, 189 AD2d 717 [1st Dept 1993]).”

Waiting can cost you April 3, 2020

Aikanat v Spruce Assoc., L.P., 2020 NY Slip Op 02188 (1st Dept. 2020)

“The court providently exercised its discretion in declining to vacate the note of issue or permit post-note of issue discovery in light of defendants’ failure to seek the discovery at an earlier time (see generally Andon v 302-304 Mott St. Assoc., 94 NY2d 740, 745 [2000]). Although defendants requested authorization to obtain plaintiff’s tax returns in 2015, they took no action to enforce their request until after the note of issue was filed. Similarly, they did not seek the Facebook Data until soon before the note of issue was filed, despite the asserted need for the information based on plaintiff’s testimony in his depositions, the last of which was taken in July 2018.

Defendants contend that the note of issue should be vacated because plaintiff misrepresented in the certificate of readiness that discovery was complete. However, the certificate of readiness correctly stated that plaintiff responded to all outstanding discovery requests, in that objections are an appropriate response. Furthermore, defendants failed to indicate why they are entitled to the discovery they belatedly sought; why the information in the tax returns was not available from another less private source, such as plaintiff’s employer’s payroll records (see Gama Aviation Inc. v Sandton Capital PartnersLP, 113 AD3d 456, 457 [1st Dept 2014]); and why they waited so long to request the social media information.

Defendants also assert that they were also improperly denied the opportunity to depose a corporate witness from third-party defendant BGC Partners, Inc. (BGC), who had knowledge of their claims for contractual indemnification and failure to procure insurance, and that the first witness produced by BGC did not have the requisite knowledge. However, they fail to indicate why they waited until after the note of issue was filed to seek this discovery inasmuch as the sale of assets to BGC occurred in April 2012, and defendants deposed the corporate witness in August 2018. The court further noted that defendants moved for summary judgment on their [*2]indemnification claims against BGC, demonstrating that the additional discovery was superfluous.”

I find this interesting as it is consistent with the view that the party who sleeps on his rights waives them. I believe that moving for summary judgment and asking for tax returns caused the court not insert its discretion in the place of the Supreme Court.

Uber-D-Duber- Whoa! March 28, 2020

Matter of Vega (Postmates Inc.–Commissioner of Labor), 2020 NY Slip Op 02094 (2020)

Your Uber driver is an employee. Watershed moment I think.

“Here, there is substantial evidence in the record to support the Board’s determination that Postmates exercised control over its couriers sufficient to render them employees rather than independent contractors operating their own businesses. The company is operated through Postmates’ digital platform, accessed via smartphone app, which connects customers to Postmates couriers, without whom the company could not operate. While couriers decide when to log into the Postmates’ app and accept delivery jobs, the company controls the assignment of deliveries by determining which couriers have access to possible delivery jobs. Postmates informs couriers where requested goods are to be delivered only after a courier has accepted the assignment. Customers cannot request that the job be performed by a particular worker. In the event a courier becomes unavailable after accepting a job, Postmates—not the courier—finds a replacement. Although Postmates does not dictate the exact routes couriers must take between the pick-up and delivery locations, the company tracks courier location during deliveries in real time on the omnipresent app, providing customers an estimated time of arrival for their deliveries. The couriers’ compensation, which the company unilaterally fixes and the couriers have no ability to negotiate, are paid to the couriers by Postmates. Postmates, not its couriers, bears the loss when customers do not pay. Because the total fee charged by Postmates is based solely on the distance of the delivery and couriers are not given that information in advance, they are unable to determine their share until after accepting a job. Further, Postmates unilaterally sets the delivery fees, for which it bills the customers directly through the app. Couriers receive a company sponsored “PEX” card which they may use to purchase the customers’ requested items, when necessary. Postmates handles all customer complaints and, in some circumstances, retains liability to the customer for incorrect or damaged deliveries.

Postmates exercises more than “incidental control” over its couriers—low-paid workers performing unskilled labor who possess limited discretion over how to do their jobs. That the couriers retain some independence to choose their work schedule and delivery route does not mean that they have actual control over their work or the service Postmates provides its customers; indeed, there is substantial evidence for the Board’s conclusion that Postmates dominates the significant aspects of its couriers’ work by dictating to which customers they can deliver, where to deliver the requested items, effectively limiting the time frame for delivery and controlling all aspects of pricing and payment.

Although the operative technology has changed in the interim decades, this case is indistinguishable from Matter of Rivera, where we held that substantial evidence supported the Board’s conclusion that a similar delivery person was an employee of the delivery company—even though he set his own delivery routes and did not have a set work schedule but called the company’s dispatcher whenever he wished to engage in work, accepting only the jobs he desired (see Matter of Rivera [State Line Delivery Serv. — Roberts], 69 NY2d 679 [1986], cert denied 481 US 1049 [1987]; see also Matter of Di Martino [Buffalo Courier Express Co. — Ross], 59 NY2d 638 [1983]).”

So remember this. All of your ATIC non yellow taxi cases? Sue the “base”. At the least app cases are toast. When they say the policy is $100,000, smile and say, my client had a scope and we are in the Bronx – no deal.

The conditional order of dismissal March 28, 2020

Mehler v Jones, 2020 NY Slip Op 02103 (1st Dept. 2020)

“The motion court providently exercised its discretion in issuing a conditional order of dismissal, in light of plaintiff’s history of noncompliance with court orders requiring her to appear for a further deposition (see CPLR 3126[3]; Fish & Richardson, P.C. v Schindler, 75 AD3d 219, 220 [1st Dept 2010]).

Plaintiff contends that her behavior was neither willful nor contumacious. However, by issuing a conditional order, the court “relieve[d] [itself] of the unrewarding inquiry into whether [plaintiff’s] resistance was willful” (Board of Mgrs. of the 129 Lafayette St. Condominium v 129 Lafayette St., LLC, 103 AD3d 511, 511 [1st Dept 2013] [internal quotation marks omitted]).”

I find it hard to believe that the decision to impost a conditional order is a two step process. This Court lately has been all over the place doctrinally. There was a CPLR 2309 case that was off the charts stupid that I did not post because I did not want to encourage anyone to make those arguments. I am losing faith in this Court quickly.

Working remotely March 28, 2020

I start by stating the obvious: None us in this profession are generally “essential workers”. We at best redistribute wealth. What does that mean to you? It means getting behind the laptop, watching Cuomo at 11:30 and DJT at 5:15 or 5:45 PM. For some, it is doing arbitration submissions, which should continue due to the paperless and lack of personal appearances necessary to keep that system going.

For others, it is finishing discovery demands and responding to motions, although it is now illegal to file to any papers. And yet for others, it is putting deals together and drafting contracts. But, the work is all done in seeming isolation.

No-Fault involves small bills and tons of redundancy. Sometimes, there is some very interesting or novel issues within the minutia. I for one am always searching for it. But, with a closed judicial system and plenty of people laid off, this has become a tough road to navigate.

I for one look forward to virtual hearings, virtual court appearances and Skype trials. Robert Frost told us: ” Two roads diverged in a wood, and I—
I took the one less traveled by, And that has made all the difference. “