Featured

We Moved

I’ve decided to move thecplrblog to here, under the bruteforcelawyer site, because typepad has been absolutely terrible for me for quite some time now.  Some things might be moved around since I’m not sure whether I want to run more than one blog on this site. So, you might have to take an extra step to click on the CPLR stuff at some point.

CPLR 5513(a)

W. Rogowski Farm, LLC v County of Orange, 2019 NY Slip Op 01815 [2d Dept. 2019]

[W]e hold that service of the order or judgment with written notice of entry by any party upon the other parties to the action operates to commence the 30-day time to appeal with respect to not only the serving party, but all the parties in the action.

***

[T]he language of CPLR 5513(a) as to who serves notice of entry is not limited to the “prevailing party,” or to “the appealing party,” or to “the party seeking to limit an adversary’s appellate time.” Rather, “a” party, which is unrestricted, necessarily refers to “any” party to an action. As a result, the service of an order or judgment with written notice of entry commences the 30-day time to appeal as to not only the party performing the service, but as to all other parties as well.

***

The plaintiffs argue that the County’s motion to dismiss the complaint insofar as asserted against it is untimely, as the motion was not filed until after the parties’ briefs had been fully submitted, and that the issue is otherwise waived.
The County’s motion to dismiss is nevertheless entertained and granted on its merits. As previously noted, the time period for filing a notice of appeal is jurisdictional in nature and non-waivable.

“Manifest disregard of the law”

Matter of Reljic v Tullett Prebon Fin. Servs., LLC, 2019 NY Slip Op 01182 [1st Dept. 2019]

In holding petitioners jointly and severally liable for compensatory damages, plus attorneys’ fees and costs, the arbitrators did not act in manifest disregard of the law (see Matter of Brown & Williamson Tobacco Corp. v Chesley, 7 AD3d 368, 372 [1st Dept 2004]; Duferco Intl. Steel Trading v T. Klaveness Shipping A/S, 333 F3d 383, 385 [2d Cir 2003] [“to vacate an arbitral award on the grounds of manifest disregard of the law … we must be persuaded that the arbitrators understood but chose to disregard a clearly defined law or legal principle”]).

Discovery

O’Halloran v Metropolitan Transp. Auth., 2019 NY Slip Op 01318 [1st Dept. 2019]

The court providently exercised its discretion in granting in part plaintiff’s motion to compel discovery and ordering defendants to run searches of electronic mailboxes of defendants’ employees and to produce those documents responsive to plaintiffs’ requests (CPLR 3101[a]; 148 Magnolia, LLC v Merrimack Mut. Fire Ins. Co., 62 AD3d 486, 487 [1st Dept 2009]; see also Andon v 302-304 Mott St. Assoc., 94 NY2d 740, 745 [2000]; GoSMILE, Inc. v Levine, 112 AD3d 469 [1st Dept 2013]). The record demonstrates that plaintiff’s requests seek material and necessary information, and that her search terms, all of which were to be combined with her name or nickname or the name or nickname of a coworker she alleges was discriminated or retaliated against on similar grounds, would result in the disclosure of relevant evidence, and are reasonably calculated to lead to the discovery of relevant information.

Plaintiff’s second Supplemental Request for Production of Documents, dated November 30, 2017, seeking all complaints, discrimination-related or not, involving defendant George Menduina’s conduct from 2010 to present, sought information material and necessary to this particular lawsuit because such information was relevant not only to whether Menduina, plaintiff’s supervisor, discriminated against plaintiff, but also to whether Menduina was more qualified than plaintiff to hold the very position that plaintiff alleges she was denied for discriminatory reasons.

Fowler v Buffa, 2019 NY Slip Op 01306 [1st Dept. 2019]

The trial court did not err in precluding a disability insurance form alleged to contain a statement against interest from defendant Anurag Shrivastava, M.D. The imposition of sanctions for discovery misfeasance is a matter better left to the sound discretion of the trial court (see Gomez v New York City Hous. Auth., 217 AD2d 110, 114 [1st Dept 1995]). CPLR 3101 provides that there shall be full disclosure of all matter material and necessary in the prosecution or defense of an action, including a party’s own statements (see also Sands v News Am. Publ., 161 AD2d 30, 42 [1st Dept 1990]). Plaintiff’s disclosure of the document less than two days prior to trial was an unfair surprise for which no reasonable excuse was proffered (see Curbean v Kibel, 12 AD3d 206, 207 [1st Dept 2004]; Ward v Mehar, 264 AD2d 515, 516 [2d Dept 1999]).

credibility determined as a matter law

Carthen v Sherman, 2019 NY Slip Op 00954 [1st Dept. 2019]

Although we agree with the dissent that as a general premise “the contradictions in the testimony of the respective parties raise issues of credibility for the trier of fact to resolve,” there are rare instances where credibility is properly determined as a matter of law (see e.g. Finley v Erie & Niagara Ins Assn., 162 AD3d at 1654-1646; Loughin v City of New York, 186 AD2d 176, 177 [2d Dept 1992]). This Court is not “required to shut its eyes to the patent falsity of a [claim]” (MRI Broadway Rental v United States Min. Prods. Co., 242 AD2d 440, 443 [1st Dept 1997], affd 92 NY2d 421 [1998]).

Cannot establish prima facie case in reply

GMP Fur Trade Fin., LLC v Brenner, 2019 NY Slip Op 00858 [2d Dept. 2019]

Additionally, the plaintiff could not sustain its prima facie burden by relying on unauthenticated bank records submitted through an attorney affirmation for the first time with its reply papers (see Poole v MCPJF, Inc., 127 AD3d 949, 949-950; DiLapi v Saw Mill Riv., LLC, 122 AD3d 896, 900; Daguerre, S.A.R.L. v Rabizadeh, 112 AD3d 876, 879; Damas v Valdes, 84 AD3d 87, 96).

Subpoenas — abuse of Discretion not to adjourn for appearance

Matter of Global Liberty Ins. Co. v Perez, 2019 NY Slip Op 00548 [1st Dept. 2019]

“It is an abuse of discretion to deny a continuance where the application complies with every requirement of the law and is not made merely for delay, where the evidence is material and where the need for a continuance does not result from the failure to exercise due diligence” (Balogh v H.R.B. Caterers, 88 AD2d 136, 141 [2d Dept 1982]). Here, there is no evidence that petitioner Global Liberty was dilatory in issuing subpoenas to the officer who responded to the scene or to respondent Nestor Ruben Perez, neither of whom appeared at the framed issue hearing. Nor is there any evidence that petitioner was in any way responsible for these witnesses’ failure to appear. The issue about which they would testify, i.e., whether the vehicle involved in the accident, which fled the scene, was a 2003 Subaru or a 2005 Chevrolet, is central to the issue of whether that vehicle was stolen or was driven by Flores’s ex-husband who reported it stolen. Moreover, while Flores and GEICO claim prejudice on the ground that Flores’s ex-husband has left the country, Global Liberty has made it clear that it would consent to having him testify by electronic means (cf. Yu Hui Chen v Chen Li Zhi, 109 AD3d 815 [2d Dept 2013]), a concession not addressed by Flores and GEICO or the court below.

Failure to object

Matter of Miller v City of New York, 2019 NY Slip Op 00558 [1st Dept. 2019]

Petitioner’s failure to object to the admission of a 2013 stipulation of settlement of a prior investigation waives the issue of admissibility (see Community Counseling & Mediation Servs. v Chera, 115 AD3d 589, 590 [1st Dept 2014]), and in any event, there is no evidence that the arbitrator was influenced by the stipulation in the guilt determination.

Thompson-Shepard v Lido Hall Condominiums, 2019 NY Slip Op 00576 [1st Dept. 2019]

Defendants waived their objection to the admissibility of plaintiff’s expert’s unsworn report by failing to raise it before the motion court (see Shinn v Catanzaro, 1 AD3d 195, 198 [1st Dept 2003]). However, in any event, the report does not raise a triable issue of fact (see Kane, 4 AD3d at 190; Mandel v 370 Lexington Ave., LLC, 32 AD3d 302 [1st Dept 2006]; Silva v 81st St. and Ave. A Corp., 169 AD2d 402, 404 [1st Dept 1991], lv denied 77 NY2d 810 [1991]). Plaintiff attempts to link the expert’s opinion that the staircase contained irregular and excessive riser heights with her testimony that upon arriving at the scene of the accident she saw the decedent’s leg lodged in a riser. However, her after-the-fact observation does not show that the decedent fell because of the purportedly defective riser. Moreover, insofar as the decedent’s hearsay statements cited in the expert’s report can be considered, the decedent did not say that he slipped for reasons related to the risers.

3216 and mailing / personal knowledge

Bank of Am. v Guillaume, 2019 NY Slip Op 00845 [2d Dept. 2019]

“CPLR 3216 is the general statutory authority for neglect-to-prosecute dismissals” (Baczkowski v Collins Constr. Co., 89 NY2d 499, 502). Pursuant to CPLR 3216, a court may dismiss an action for want of prosecution only after the court or the defendant has served the plaintiff with a written demand requiring the plaintiff “to resume prosecution of the action and to serve and file a note of issue within [90] days after receipt of [the] demand,” and also stating that the failure to comply with the demand will serve as a basis for a motion to dismiss the action.

Notably, the time within which the plaintiff must act runs from the receipt, and not the service of the demand (see Vasquez v City of New York, 5 AD3d 672Kun Tiam Seow v Yu Dan Li, 1 AD3d 570, 571; 176-60 Union Turnpike v Klinger, 284 AD2d 380). Once the 90-day demand is received, “the plaintiff [is] required to comply with it by filing a note of issue or move before the default date to vacate the demand or extend the 90-day period” (Kushmakova v Meadow Park Rehabilitation & Health Care Ctr., LLC, 56 AD3d 434, 436; see CPLR 3216[c],[e]).

“Generally, proof that an item was properly mailed gives rise to a rebuttable [*2]presumption that the item was received by the addressee'” (New York & Presbyt. Hosp. v Allstate Ins. Co., 29 AD3d 547, 547, quoting Matter of Rodriguez v Wing, 251 AD2d 335, 336). “The presumption may be created by either proof of actual mailing or proof of a standard office practice or procedure designed to ensure that items are properly addressed and mailed” (Residential Holding Corp. v Scottsdale Ins. Co., 286 AD2d 679, 680).

Contrary to the defendant’s contention, she failed to establish that the 90-day demand was sent by certified mail and received by the plaintiff or anyone acting on its behalf. In his affirmation in support of the defendant’s motion, the defendant’s counsel asserted that on July 28, 2017, his office sent a 90-day demand to plaintiff’s counsel by certified mail. However, the defendant’s counsel does not state that he had personal knowledge of the mailing of the 90-day demand or describe his office’s standard practices of mailing litigation papers to opposing counsel. Additionally, even though the certified mail receipt bears a postmark date of July 28, 2017, there was no evidence that the 90-day demand was mailed under that certified mail receipt number (see Mid City Constr. Co., Inc. v Sirius Am. Ins. Co., 70 AD3d 789, 790; New York & Presbyt. Hosp. Allstate Ins. Co., 29 AD3d at 547-548). Therefore, the defendant’s submissions were insufficient to raise a presumption that the plaintiff received the 90-day demand. Accordingly, we agree with the Supreme Court’s denial of the defendant’s motion pursuant to CPLR 3216 to dismiss the complaint insofar as asserted against her for failure to prosecute.

A judgment without jurisdiction is void

Board of Mgrs. of 50 W. 127th St. Condominium v Kidd, 2019 NY Slip Op 00973 [1st Dept. 2019]

Defendant did not waive the defense of lack of jurisdiction. Before her incoming counsel filed a notice of appearance without mentioning the defense, she had already presented an order to show cause seeking to vacate the judgment based on lack of personal jurisdiction, and she moved to vacate based on improper service shortly after new counsel appeared. In contrast, in the cases relied on by plaintiff and City West, the defendant’s counsel filed a notice of appearance without preserving any objection to jurisdiction after the time to move or answer had elapsed, and did not move to vacate for years afterwards, indicating an intentional abandonment of the defense (see e.g. Wilmington Sav. Fund Socy., FSB v Zimmerman, 157 AD3d 846, 846-847 [2d Dept 2018], lv denied 31 NY3d 1135 [2018]; Capital One Bank, N.A. v Farraco, 149 AD3d 590, 590 [1st Dept 2017]). Defendant’s communications with plaintiff’s managing agent in which she arranged to pay her arrears, cannot be construed as an appearance in the action, much less a waiver of her defense of lack of jurisdiction.

Because the judgment was entered without jurisdiction over defendant, City West is not entitled to restitution as an alternative remedy to vacatur of the foreclosure sale, as “[a] judgment rendered without jurisdiction is void” and “a deed [] issued in execution upon such a void judgment . . . is similarly void” (U.S. Bank, N.A. v Bernhardt, 88 AD3d 871, 872 [2d Dept 2011]).

3126 commensurate…and no further

Han v New York City Tr. Auth., 2019 NY Slip Op 00975 [1st Dept. 2019]

CPLR 3126 provides that if a party “refuses to obey an order for disclosure or wilfully fails to disclose information which the court finds ought to have been disclosed . . . , the court may make such orders with regard to the failure or refusal as are just.” It is within the motion court’s discretion to determine the nature and degree of the penalty (see Kihl v Pfeffer, 94 NY2d 118, 122 [1999]), and the sanction will remain undisturbed unless there has been a clear abuse of discretion (see Those Certain Underwriters at Lloyds, London v Occidental Gems, Inc., 11 NY3d 843, 845 [2008]). The sanction should be “commensurate with the particular disobedience it is designed to punish, and go no further than that” (Patrick M. Connors, Practice Commentaries, McKinney’s Cons Laws of NY, Book 7B, CPLR C3126:8 at 497; see also Merrill Lynch, Pierce, Fenner & Smith, Inc. v Global Strat Inc., 22 NY3d 877, 880 [2013]).