Category Archives: Uncategorized

NY High Court Draws Careful Distinction Between 6 Months to Re-File after Non-Merits Dismissal and Relation Back of Claims in Amended Complaint; Warns that it Cannot Review Issues Not Addressed at Nisi Prius

Precedents established in personal injury cases loomed large in a Court of Appeals decision arising from a dispute involving mortgage backed securities.

If the original complaint gives sufficient notice, CPLR 203(f) uses the date of interposition of the original claims to calculate the statute of limitation for claims contained in a later amendment. Under CPLR 205(a), if an otherwise timely action is dismissed for non-merits reasons, a new action commenced within 6 months of the dismissal will be deemed timely. The Court reiterated that these provisions are not interchangeable.

In Goldberg v Camp Mikan-Recro, 42 NY2d 1029 [1977], the Court held that a wrongful death claim asserted in an amended complaint could not relate back to the original complaint that was brought by the decedent’s father solely in his individual capacity. The Court held that since the original suit was brought without capacity to sue for the decedent’s injuries, there was no pre-existing action to which the claims in the amended complaint could relate back.

In George v Mt. Sinai Hosp., 47 NY2d 170 [1979] and Carrick v Cent. Gen. Hosp., 51 NY2d 242 [1980], the Court established that a dismissal of an action for the same lack of capacity was a non-merits dismissal, so that an action commenced within six months of the dismissal by a properly appointed representative was timely.

So, when a trustee brought an untimely action for breach of representations and warrantees against the sponsor of some mortgage backed securities, the trustee argued that under CPLR 203(f) it should relate back to a certificate holder’s previously filed action. No dice says the Court. Under the transaction documents, the certificate holder was subject to a no-action clause, so that there was no valid pre-existing action to relate back to.

In a chilling reminder to all of us, the Court refused to consider the alternative argument for a toll under CPLR 205(a), because the trustee never raised it below. The sponsor said in a footnote in its motion papers that 205(a) wouldn’t apply should the trustee raise it. This did not help the trustee on appeal; the Court says this obligated the trustee to address it. The Court reminds us that “[w]hile in some circumstances the Appellate Division has interest of justice jurisdiction to review an issue raised for the first time on appeal, this Court “ha[s] no power to review either the Appellate Division’s exercise of its discretion to reach that issue, or the issue itself” U.S. Bank Natl. Assn. v DLJ Mtge. Capital, Inc., 2019 NY Slip Op 01168 (2/19/2019)

In a separate case decided between the same parties but apparently arising from a different transaction, the trustee’s original action was dismissed for failure to comply with a contractual notice to cure or repurchase condition precedent.  CPLR 205(a) saved the day for the trustee. The statute of limitations did not bar a second action because the trustee was able to comply with the provision and commence a new action within six months. U.S. Bank Natl. Assn. v DLJ Mtge. Capital, Inc.,  2019 NY Slip Op 01169 (2/19/2019). 


The Arizona Department of Insurance issued a regulatory bulletin noting that commercial policy holders are only entitled to 30 days’ notice of changes or reduction in coverage.  This does not leave a whole lot of time to shop.

The bulletin stresses that mere warning of possible changes is not enough. The communication must be “sufficiently specific to allow policyholders to make an informed decision”. Nevertheless, notice is considered given if the “insurer delivers new policy terms and conditions thirty days before the expiration of the policy”.

So, thirty days before renewal you might get (or get online access to) a renewal package and a bill. If you are like most business owners and professionals, you have enough to do taking care of clients and customers. It would be normal to look for the bill and make sure it gets paid, but otherwise ignore the other stuff. This could be a costly mistake. It is important to compare the renewal offer to your current coverage to make sure there are no changes. Contact your broker or the insurance company promptly if there are any discrepancies or if you have any questions.


The typical credit card agreement requires that you make a minimum monthly payment. If you miss a monthly payment, the issuer can declare a default and demand immediate payment of the full balance (legal jargon: “accelerate”) with fees, etc. But what if the bank just lets it slide?

In Arizona, the bank has six years to sue on credit card debt (A.R.S. § 12-548(A)(2)).  In a case decided Thursday, the Arizona Court of Appeals said that the six-years do not start to run until the bank notifies the consumer that it has elected to accelerate.

The consumers missed a payment in 2007, made their last payment in 2008, and the balance was charged off. The bank eventually assigned the debt to a company that sued the consumers in 2014. The consumers argued that that the six years started to run when they first missed a payment in 2007. The Arizona Court of Appeals said the clock does not start until a demand for payment in full is issued.

The court said that this rule is not bad for consumers because it gives space to work things out if the consumer falls behind. The court said banks are unlikely to ignore dormant accounts just to allow interest to pile up. The court mentioned that the consumers might have “equitable” defenses (laches) if unreasonable delay by the bank is prejudicial. The burden of proving an equitable defense would be on the consumer and I would not count on it.

So just because you haven’t heard anything for a few years does not mean you’re off the hook.

Mertola v Santos (3/2/2017)

“Quixotic”, “self-absorbed”, “narcissistic”, “ungrateful”, “delusional”, and a “paranoid pompous ass” (sorry, it’s not who you think).

These words were not used to describe a public figure. The operator of an apartment complex allegedly used them to describe a resident after a dispute over entitlement to a third parking space.  The resident sued for defamation, harassment, and intentional infliction of emotional harm.

The New York Appellate Division, Second Department, said these terms were not defamatory per se since they did not connote a serious crime or loathsome disease, and did not tend to injure the resident in his trade or profession. Furthermore, they were readily understood as expressions of opinion, and were not statements of fact. Statements of opinion are not actionable.

The court threw out the harassment claim because, in this context, no such claim exists under New York law.

The court also held that these expressions were no so outrageous in character, and so extreme in degree, as to go beyond all possible bounds of decency, and to be regarded as atrocious, and utterly intolerable in a civilized community. Thus, there was no case for intentional infliction of emotional distress.

Scialdone v DeRosa  (March 1, 2017)


A dispute arose over the terms of a commercial lease, and the landlord sued the tenant for certain operating expenses. The tenant then stopped paying rent and sought a preliminary injunction against any eviction proceedings. The landlord responded with an amended complaint for forcible detainer (eviction). The trial court granted the preliminary injunction and denied the eviction. Appeal ensued.

The Court of Appeals, Division 2, reversed, holding that the trial court did not have authority to enjoin eviction. The Forcible Detainer statute, A.R.S. §12-1171 et. seq., gives the landlord the right to an expeditious adjudication, and “the only issue shall be the actual right of possession”, A.R.S. §12-1177(A). Since claims for equitable relief inject additional considerations, such as relative hardship to the parties, a request for an injunction runs afoul of the express language of the statute.

Tucson Lot 4 v Sunquest Info. Sys (11/22/16)


The Empire State will implement licensure of pathologists’ assistants on November 28, 2017, under new Article 168 of the New York Education Law approved on November 28, 2016. Applicants for the new license will need at minimum a bachelor’s degree in an approved program and will have to pass an examination.

Licensees will be authorized, under the supervision of a physician who practices anatomic pathology, to prepare tissues samples, perform post-mortem examinations, and perform other related tasks to be determined by the State Education Department.

The bill’s sponsor explained that individuals currently doing this work often try to qualify as laboratory technicians under a law that soon going to sunset, even though they are certified by national bodies or hold international medical degrees.

2016 NY Laws Ch. 497




Parents sued an emergency room physician for malpractice after their son died from a methadone overdose. The defendants made a Rule 68 offer of $10,000.00. The jury found in favor of the doctor.

The parents argued that they should not have to pay the Rule 68(g) sanctions because the offer was made in bad faith. They asserted that the amount offered was not reasonable if measured against the damages that would have been awarded if they had won.

The Court of Appeals held that there was no standard of reasonableness in the rule,  that the sanctions are “both mandatory and punitive”, and that “it is solely within the purview of the parties to prudently evaluate their causes of action and defenses”.

Stafford v Burns (Nov. 29, 2016);    Ariz. R. Civ. P. 68


I am admitted to the bar in two great states, Arizona and New York.

I have enjoyed hockey since my youth. I well remember listening to Marv Albert call Rangers’ games on our small radio. There were only six teams in the league, New York being the southern-most. That I would one day attend NHL games in Glendale, AZ, was beyond all imagination.

So as I often do when I am not diligently pursuing my clients’ matters, I was amusing myself by reading the output of appellate courts (I admit it: I’m sick). I discovered that, on the same day, courts in both states issued opinions about hockey fan fights.

A youth hockey tournament of 13-year-old players took place in Rome, New York, a/k/a the “Copper City”. The spectators were mostly relatives of the players. The game was marked by on-ice fisticuffs and ejection of one of the coaches.

After the game, two female spectators got into a fight. Although the opinion does not tell us their relationship to the on-ice combatants, it does bring to mind Sara Palin’s speech about hockey moms and pit bulls with lipstick. In the ensuing melee, the plaintiff tried to break up the fight only to get clocked by one woman’s brother.

The plaintiff sued the youth hockey association for failing to maintain order and to enforce its “zero tolerance” policy. New York’s high court held that the criminal conduct of the adults was not a foreseeable consequence of the league’s failure to eject any particular spectator, and so the league was off the hook.

Pink v Rome Youth Hockey Assn (Oct. 25, 2016).

Meanwhile, back in the “Copper State” of Arizona, a Mr. Franklin was intoxicated at a hockey game and began to direct insults and profanities as some of the other spectators. One Blanchard felt a “thud” on his head, and turned to see Franklin making obscene gestures and otherwise acting in a disordered manner. Blanchard punched Franklin in the head, Franklin then spit on Clemett, and Clemett responded by punching Franklin twice in the head.

Franklin then sued Blanchard and Clemett (in New York they call that “chutzpah”). Blanchard and Clemett raised the defense of Franklin’s drunkenness. By Arizona statute (A.R.S. § 12-711), you can’t collect anything for your injury if you are at least half at fault due to intoxication. The judge instructed the jury on this law and Franklin got zilch.

Franklin told the Arizona Court of Appeals that the jury instructions violated a provision in the Arizona constitution that requires questions of contributory negligence to be decided by a jury. The Court of Appeals found that there was “ample evidence Franklin was under the influence of an intoxicating liquor”, and that the jury properly applied the intoxication defense. So, for now, Franklin still gets zilch, and owes appeal costs to boot.

Franklin v Clemett (Oct. 25, 2016).

So in the Empire State and the Copper State, from the Copper City to the Valley of the Sun, players play their hockey, fans get out of hand, and justice is dispensed. It makes me feel somehow whole and connected.



How very good and pleasant it is, when kindred live together in unity! (Psalm 133:1 [NRSV]).

And how nasty it can get when HOA board members can’t get along!

An HOA board member sided with a former association employee who alleged misconduct by the association’s general manager. The allegations were contained in emails that the board reviewed in executive session. The board voted, in executive session, to disavow the email. The dissenting director then proceeded to read the email aloud during public session, prompting an abrupt adjournment. The association’s attorney recommended that the association exclude the dissenting director from future executive sessions, and the board approved a motion to that effect.

After the dissenting director was reelected, the board offered to permit the dissenting director to attend executive sessions if she would agree to keep the discussions confidential. The dissenting director refused, and contended that the offer required that she admit to wrongdoing.

The dissenting director went to court and asked for a preliminary injunction requiring the board to allow her into executive sessions. The Superior Court declined to issue the preliminary injunction, but today the Arizona Court of Appeals reversed.

The appeals court said that the association did not have the authority to blanket ban a director from executive sessions. By doing so it prevented her from participating in management of the association’s affairs as required by statute. The board argued that the board, minus the dissenting director, was simply a special committee, which is allowed by law. The court did not buy that argument. The court noted there was no evidence that any special committee was formed, and that it would be improper to form a committee for the sole purpose of excluding a single director from the board’s deliberations.

The court also noted that the only procedure provided by the association’s governing documents for removal of a director was a recall election. Arizona statutes would have allowed the association to provide other or additional removal procedures.

The court did say that, in other cases, limited exclusion of a director from executive session might be allowed to address the director’s conflict of interest, or alleged misconduct, or litigation involving the director.

The cost of all this to the association is yet to be determined. The Court of Appeals awarded attorneys’ fees to the dissenting director for the appeal only. Whether fees will be awarded for the entire case is to be decided at a later date.

McNally v Sun Lakes (Oct. 13, 2016).


A same-sex couple got married in California. They made a written agreement to have a child by artificial insemination and to be equal parents. After pregnancy was achieved, the couple moved to Arizona. After the child was born, the biological mother returned to work while her spouse stayed home to care for him. Two years later, while Obergefell was still pending in the federal courts, the couple split and petitions for dissolution and parenting were filed in Arizona state courts.

After Obergefell was decided, the Superior Court ruled on a preliminary question of parental rights. Recognizing the importance of the questions, the Court of Appeals, Division Two, accepted special action jurisdiction and issued its opinion today.

A.R.S. § 25-814 states that “a man is presumed to be the father of a child” if the child is born during the marriage. The statute goes on the provide that the presumption “shall be rebutted by clear and convincing evidence”.

The three judge panel ruled that under Obergefell, the only way to constitutionally apply the statute is to apply it in a gender-neutral way. The court also found that that the biological mother was estopped from attempting to rebut the presumption of parenthood. The court found that it would not be equitable to entertain any attempt at rebuttal in light of the couple’s written agreement, written commitment to seek second parent adoption (which was not then available in Arizona), wills recognizing the child as beneficiary, and the fact that the spouse stayed home to care for the child.

The court also concluded that “having two parents to love and support” him was in the child’s best interest.

McLaughlin v Jones (October 11, 2016).