CDR Creances S.A.S. v. Cohen

• Decision Date: 19 October 2010
• Citation: 909 N.Y.S.2d 697,77 A.D.3d 489
• Parties: CDR CRÉANCES S.A.S., etc., Plaintiff-Respondent, v. Maurice COHEN, et al., Defendants-Appellants, Summerson International Establishment, et al., Defendants. CDR Creances S.A.S., etc., Plaintiff-Respondent, v. Leon Cohen, etc., et al., Defendants-Appellants, Iderval Holdings, Ltd., et al., Defendants.
• Court: New York Supreme Court — Appellate Division

909 N.Y.S.2d 697 77 A.D.3d 489 CDR CRÉANCES S.A.S., etc., Plaintiff-Respondent, v. Maurice COHEN, et al., Defendants-Appellants, Summerson International Establishment, et al., Defendants. CDR Creances S.A.S., etc., Plaintiff-Respondent, v. Leon Cohen, etc., et al., Defendants-Appellants, Iderval Holdings, Ltd., et al., Defendants. Supreme Court, Appellate Division, First Department, New York. Oct. 19, 2010.

Dewey Pegno & Kramarsky LLP, New York (David S. Pegno of counsel), for appellants.

Kellner Herlihy Getty & Friedman, LLP, New York (Douglas A. Kellner of counsel), for respondent.

SAXE, J.P., FRIEDMAN, NARDELLI, CATTERSON, JJ.

Order, Supreme Court, New York County (Walter B. Tolub, J.), entered November 27, 2009, which, to the extent appealed from, denied the motion of defendants Maurice Cohen, Leon Cohen and Sonia Cohen for leave to amend, denied the motion of the Cohens and defendants Joelle Habib, Robert Maraboeuf, Allegria Achour Aich, and Patricia Habib Petetin for summary judgment dismissing the complaints, and granted plaintiff's disclosure motion, unanimously modified, on the law, to deny plaintiff's motion to compel the production of Maurice Cohen's personal income tax returns, without prejudice to renewal, and otherwise affirmed, without costs.

The motion court properly denied the Cohen defendants' motion to amend their answer to add various affirmative defenses after several years of litigation. Significant progress had been made in the cases and substantial discovery had been conducted, and the numerous proposed defenses would have necessitated no small measure of additional discovery ( compare Antwerpse Diamantbank N.V. v. Nissel, 27 A.D.3d 207, 810 N.Y.S.2d 180 [2006] ). In addition, all the proposed defenses were set forth in conclusory fashion and unsupported by any evidentiary showing, such as an affidavit by a person with knowledge of the facts ( see Guzman v. Mike's Pipe Yard, 35 A.D.3d 266, 825 N.Y.S.2d 480 [2006] ). Several also lacked merit as a matter of law. The claimed defenses of lack of personal jurisdiction, the contractual selection of a forum in France and plaintiff's lack of standing were waived by defendants' general appearance and participation in this litigationover a period of several years, failure to assert the defenses in their original answers, and failure to seek amendment as of right ( see Frankel v. Siravo, 278 A.D.2d 66, 67, 717 N.Y.S.2d 566 [2000] ). The defenses of lack of standing and forum selection had been raised previously and rejected, and, since no appeal was taken from those determinations, areprecluded by the doctrine of law of the case ( cf. Rubeo v. National Grange Mut. Ins. Co., 93 N.Y.2d 750, 697 N.Y.S.2d 866, 720 N.E.2d 86 [1999] [second appeal presenting issue on which appeal had been noticed earlier and abandoned was correctly dismissed] ). We note that, since forum clause and lack of standing defenses do not implicate subject matter jurisdiction ( see Lischinskaya v. Carnival Corp., 56 A.D.3d 116, 122-123, 865 N.Y.S.2d 334 [2008], lv. denied 12 N.Y.3d 716, 2009 WL 1851758 [2009]; Security Pac. Natl. Bank v. Evans, 31 A.D.3d 278, 280, 820 N.Y.S.2d 2 [2006], appeal dismissed 8 N.Y.3d 837, 830 N.Y.S.2d 8, 862 N.E.2d 86 [2007] ), they are subject to waiver and abandonment.

Since amendment to add...