Painful IME

Goldson v Mann, 173 AD3d 410 [1st Dept. 2019]

Defendant failed to meet his prima facie burden of demonstrating that he did not depart from good and accepted medical practice in examining plaintiff during an independent medical examination (IME), or that any such departure was not a proximate cause of plaintiff’s injury to her left shoulder (see Scalisi v Oberlander, 96 AD3d 106, 120 [1st Dept 2012]). Defendant’s expert affirmation, which relied on defendant’s testimony regarding his custom and practice of examining patients during his IMEs, was insufficient. Defendant’s testimony did not establish a deliberate and repetitive practice sufficient to show evidence of his behavior during plaintiff’s examination, as he testified that his examination varied depending on the examinee (see Rivera v Anilesh, 8 NY3d 627, 634 [2007]). Therefore, the expert’s reliance on such testimony to conclude that defendant had not deviated from the accepted standard of care rendered his affirmation insufficient (compare id. at 635-636).

Defendant’s expert also failed to establish that defendant did not cause or exacerbate plaintiff’s left shoulder condition. He failed to address differences in plaintiff’s MRI findings or statements made by plaintiff’s treating physician, which suggested that plaintiff had suffered a new injury after the IME. The expert also ignored plaintiff’s testimony that defendant had forcefully pushed her left arm over her head and caused a new injury (see Wasserman v Carella, 307 AD2d 225, 226 [1st Dept 2003]), and provided no support for his statement that plaintiff’s post-IME injuries were degenerative in nature, and not traumatically induced (see Frias v James, 69 AD3d 466, 467 [1st Dept 2010]).

Necessary parties. CPLR 1001

Miller v Wendy Joan St. Wecker Trust U/A Aug. 28, 1997, 173 AD3d 1007 [2d Dept. 2019]

Necessary parties are persons “who might be inequitably affected by a judgment in the action” and must be made plaintiffs or defendants (CPLR 1001 [a]). CPLR 1001 (b) requires the court to order such persons summoned, where they are subject to the court’s jurisdiction. If jurisdiction over such necessary parties can be obtained only by their consent or appearance, the court is to determine, in accordance with CPLR 1001 (b), whether justice requires that the action proceed in their absence (see CPLR 1001 [b]). The nonjoinder of necessary parties may be raised at any stage of the proceedings, by any party or by the court on its own motion, including for the first time on appeal (see City of New York v Long Is. Airports Limousine Serv. Corp., 48 NY2d 469, 475 [1979]; Matter of Lezette v Board of Educ., Hudson City School Dist., 35 NY2d 272, 282 [1974]; Censi v Cove Landings, Inc., 65 AD3d 1066, 1067-1068 [2009]; Migliore v Manzo, 28 AD3d 620, 621 [2006]; Vincent C. Alexander, Practice Commentaries, McKinney’s Cons Laws of NY, Book 7B, CPLR C1003:1; see also CPLR 1003).

Here, the record indicates the possible existence of necessary parties who have not been joined, namely, the other residents of the subdivision who may possess a tenancy in common in Clock Tower Lane. Accordingly, we remit the matter to the Supreme Court, Nassau County, to hold a hearing to determine whether there are any necessary parties who should be joined in this action and, if so, to compel their joinder, subject to any affirmative defenses, and if joinder cannot be effectuated, to determine, pursuant to CPLR 1001 (b), whether the action should proceed in the absence of any necessary parties (see Censi v Cove Landings, Inc., 65 AD3d at 1068; De Ruscio v Jackson, 164 AD2d 684, 688 [1991]).

Argued by one judge. Decided by another.

Marti v Rana, 173 AD3d 576 [1st Dept. 2019]

The fact that oral argument was held before a different Justice than the Justice who ultimately decided the motion for summary judgment is not a proper basis for vacating the order granting summary judgment. Although Judiciary Law § 21 provides that a Supreme Court Justice “shall not decide or take part in the decision of a question, which was argued orally in the court, when he was not present and sitting therein as a judge,” reversal is not warranted on this ground, because the Justice who granted the motion decided a purely legal question (People v Hampton, 21 NY3d 277, 286 [2013]).

Plaintiffs argue that they were prejudiced because certain statements made by the court at oral argument led them to believe that a motion for leave to amend was not necessary. This argument is unavailing. To the extent counsel relied on his impressions of the court’s leanings, which were never incorporated into a binding order, he did so at his own peril.

Pro se affidavit needs to be notarized

Pollack v Ovadia, 173 AD3d 464 [1st Dept. 2019]

Although pro se defendant tenant could submit an affirmation rather than an affidavit for religious reasons, the document was still required to be notarized, and therefore the motion court was constrained to reject his unnotarized affirmation (see Slavenburg Corp. v Opus Apparel, 53 NY2d 799, 801 n [1981]; see also John Harris P.C. v Krauss, 87 AD3d 469 [1st Dept 2011]).

Accordingly, the motion was not supported by affidavit or affirmation of facts, and was properly denied (CPLR 3212 [b])

General Construction Law § 25-a (1)

Deutsche Bank Natl. Trust Co. v Sewdial, 173 AD3d 685 [2d Dept. 2019]

Contrary to the defendant’s contention, the plaintiff timely commenced this action on September 23, 2013. An action to foreclose a mortgage on real property is subject to a six-year statute of limitations (see CPLR 213 [4]; NMNT Realty Corp. v Knoxville 2012 Trust, 151 AD3d 1068 [2017]). It is undisputed that the limitations period in this case began to run on September 21, 2007. Although six years from that date is September 21, 2013, we take judicial notice of the fact that September 21, 2013, was a Saturday (see generally Hamilton v Miller, 23 NY3d 592, 603 [2014]). Thus, pursuant to General Construction Law § 25-a (1), the plaintiff had until Monday, September 23, 2013, to commence this action (see Cardamone v Ricotta, 47 AD3d 659, 660 [2008]).

3103: Protective orders

Pascual v Rustic Woods Homeowners Assn., Inc., 173 AD3d 757 [2d Dept. 2019]

CPLR 3101 (a) requires, in pertinent part, “full disclosure of all matter material and necessary in the prosecution or defense of an action.” However, the principle of “full disclosure” does not give a party the right to uncontrolled and unfettered disclosure (McAlwee v Westchester Health Assoc., PLLC, 163 AD3d 547, 548 [2018] [internal quotation marks omitted]; Ramirez v New York City Tr. Auth., 132 AD3d 653, 654 [2015]; Gilman & Ciocia, Inc. v Walsh, 45 AD3d 531, 531 [2007]).

Discovery demands are palpably improper where they seek irrelevant information, are overbroad and burdensome, or fail to specify with reasonable particularity many of the documents requested (see Jordan v City of New York, 137 AD3d 1084, 1084-1085 [2016]; H.R. Prince, Inc. v Elite Envtl. Sys., Inc., 107 AD3d 850, 850 [2013]; Matter of New York Cent. Mut. Fire Ins. Co. v Librizzi, 106 AD3d 921, 921 [2013]; Montalvo v CVS Pharm., Inc., 102 AD3d 842, 843 [2013]; Ural v Encompass Ins. Co. of Am., 97 AD3d 562, 566 [2012]). Where the discovery demands are overbroad, the appropriate remedy is to vacate the entire demand rather than to prune it (see Stepping Stones Assoc., L.P. v Scialdone, 148 AD3d 855, 856 [2017]; Berkowitz v 29 Woodmere Blvd. Owners’, Inc., 135 AD3d 798, 799 [2016]; Scorzari v Pezza, 111 AD3d 916, 916 [2013]; Bell v Cobble Hill Health Ctr., Inc., 22 AD3d 620, 621 [2005]).

Here, the discovery demands at issue were palpably improper in that they sought irrelevant information, or were overbroad and burdensome (see JPMorgan Chase Bank, N.A. v Levenson, 149 AD3d 1053, 1055 [2017]; Diaz v City of New York, 117 AD3d 777, 778 [2014]; Kamanou-Goune v Swiss Intl. Airlines, 100 AD3d 968, 969 [2012]).

MPEG LA, L.L.C. v Toshiba Am. Info. Sys., Inc., 173 AD3d 611 [1st Dept. 2019]

The motion court providently exercised its discretion by denying the motion to compel the production of documents that have no bearing on the issues in this breach of contract action (see Andon v 302-304 Mott St. Assoc., 94 NY2d 740, 745 [2000]). Moreover, the court providently determined that some of the document requests were vague and overbroad (see e.g. Lerner v 300 W. 17th St. Hous. Dev. Fund Corp., 232 AD2d 249 [1st Dept 1996])

Kim & Bae, P.C. v Sunki Lee, 173 AD3d 990 [2d Dept. 2019]

Contrary to the plaintiffs’ contention, the Supreme Court did not improvidently exercise its discretion in denying their motion to extend the time to complete discovery and to file the note of issue. Pursuant to CPLR 2004, “[e]xcept where otherwise expressly prescribed by law, the court may extend the time fixed by any statute, rule or order for doing any act, upon such terms as may be just and upon good cause shown, whether the application for extension is made before or after the expiration of the time fixed.” The grant of such an extension of time is addressed to the sound discretion of the trial court (see Tewari v Tsoutsouras, 75 NY2d 1, 11 [1989]; Oliver v Town of Hempstead, 68 AD3d 1079, 1080 [2009]; Carota v Massapequa Union Free School Dist., 272 AD2d 428, 428 [2000]). In exercising its discretion, a court may consider such factors as the length of the delay, the reason or excuse for the delay, and any prejudice to the party opposing the motion (see Tewari v Tsoutsouras, 75 NY2d at 11-12; U.S. Bank N.A. v Adler, 148 AD3d 858 [2017]; Siracusa v Fitterman, 110 AD3d 1055, 1056 [2013]).

Here, the record supports the Supreme Court’s determination to deny the plaintiffs’ request for an extension of time. A motion for a protective order only stays disclosure of the particular matter in dispute, not all discovery (see CPLR 3103 [b]; Vandashield Ltd v Isaacson, 146 AD3d 552, 556 [2017]). Thus, by filing the motion for a protective order as to certain information, the plaintiffs were not relieved of the obligation to otherwise comply with the court’s August 21, 2015, order.

However, there was no record basis for the Supreme Court to direct that the plaintiffs are precluded from offering any evidence at trial. The order dated August 21, 2015, contained a directive conditionally precluding any party from testifying at trial if that party failed to appear for a deposition as set forth in that order. As a result of the plaintiffs’ respective failures to comply with the conditional order of preclusion, that conditional order became absolute upon the plaintiffs’ noncompliance with its terms, precluding the plaintiffs from testifying at trial (see Lee v Barnett, 134 AD3d 908, 909-910 [2015]; Julien-Thomas v Platt, 133 AD3d 824, 825 [2015]; Archer Capital Fund, L.P. v GEL, LLC, 95 AD3d 800, 801 [2012]). Although the plaintiffs are, by virtue of the August 21, 2015, order, precluded from testifying at trial, that order, by its terms, does not prevent the plaintiffs from providing other evidence. No other ground for the court’s determination to prevent the plaintiffs from providing any evidence at trial appears in the record (cf. CPLR 3126). Accordingly, we modify the order appealed from by deleting so much of the order entered April 21, 2016, as directed that the plaintiffs are precluded from offering any evidence at trial.

Pursuant to CPLR 3103 (a), a court may issue a protective order denying, limiting, conditioning, or regulating the use of any disclosure device, in order “to prevent unreasonable annoyance, expense, embarrassment, disadvantage, or other prejudice to any person or the courts.” The supervision of disclosure and the setting of reasonable terms and conditions rests within the sound discretion of the trial court and, absent an improvident exercise of discretion, its determination will not be disturbed (see Noy v Noy, 160 AD3d 887 [2018]; AAA Vascular Care, PLLC v Integrated Healthcare Mgt., LLC, 99 AD3d 642 [2012]; Spodek v Neiss, 70 AD3d 810 [2010]).

Here, the affidavit of the plaintiff Bong June Kim submitted in support of that branch of the plaintiffs’ motion which was for a protective order contained only conclusory assertions that confidentiality protection was necessary (see JPMorgan Chase Funding Inc. v Cohan, 134 AD3d 455 [2015]; Linderman v Pennsylvania Bldg. Co., 289 AD2d 77, 78 [2001]). Additionally, the plaintiffs failed to demonstrate unreasonable annoyance, embarrassment, disadvantage, or prejudice to warrant the issuance of a protective order (see CPLR 3103 [a]; Noy v Noy, 160 AD3d at 887-888). Accordingly, we agree with the Supreme Court’s determination in the order dated May 17, 2016, denying that branch of the plaintiffs’ motion which was for a protective order.

Res Judicata and Law of the Case

Shahid v Legal Aid Socy., 173 AD3d 1099 [2d Dept. 2019]

“Where a dismissal does not involve a determination on the merits, the doctrine of res judicata does not apply” (Djoganopoulos v Polkes, 67 AD3d 726, 727 [2009]). “As a general rule, a dismissal for failure to state a cause of action is not on the merits and, thus, will not be given res judicata effect” (Pereira v St. Joseph’s Cemetery, 78 AD3d 1141, 1142 [2010]). Here, contrary to the defendant’s contention that this action is barred by the doctrine of res judicata, the August 2015 complaint was not dismissed on the merits (see Hock v Cohen, 125 AD3d 722, 723 [2015]; Pereira v St. Joseph’s Cemetery, 78 AD3d at 1142).

Abdelfattah v Najar, 73 AD3d 657 [2d Dept. 2019]

The Supreme Court should not have granted the motion of the defendants Adnan Najar, Mohammed Najar, and 887 Fulton Realty, LLC (hereinafter collectively the defendants), pursuant to CPLR 3211 (a) to dismiss the complaint insofar as asserted against them on the ground that the action is barred by the doctrine of res judicata. The plaintiff had commenced a prior action against, among others, the defendants, and the complaint in that action was dismissed insofar as asserted against them upon the plaintiff’s failure to appear in opposition to their motion to dismiss. An order entered upon a party’s default in appearing to oppose a motion to dismiss is not a determination on the merits (see Aguilar v Jacoby, 34 AD3d 706 [2006]). Where a dismissal does not involve a determination on the merits, the doctrine of res judicata does not apply (see Cortazar v Tomasino, 150 AD3d 668, 670 [2017]; Pereira v St. Joseph’s Cemetery, 78 AD3d 1141 [2010]). Accordingly, the doctrine of res judicata does not apply to bar the instant action (see Franchise Acquisitions Group Corp. v Jefferson Val. Mall Ltd. Partnership, 73 AD3d 1123 [2010]).

Wells Fargo Bank, N.A. v Enbar, 173 AD3d 938 [2d Dept. 2019]

“A stipulation of discontinuance with prejudice without reservation of right or limitation of the claims disposed of is entitled to preclusive effect under the doctrine of res judicata” (Liberty Assoc. v Etkin, 69 AD3d 681, 682-683 [2010]; see Mooney v Manhattan Occupational, Physical & Speech Therapies, PLLC, 166 AD3d 957, 959 [2018]; Trapani v Squitieri, 107 AD3d 696, 696-697 [2013]; Matter of Chiantella v Vishnick, 84 AD3d 797, 798 [2011]).

Fidler v Gordon-Herricks Corp., 173 AD3d 840 [2d Dept. 2019]

“Pursuant to the doctrine of [the] law of the case, judicial determinations made during the course of . . . litigation before final judgment is entered may have preclusive effect provided that the parties had a full and fair opportunity to litigate the initial determination” (Sterngass v Town Bd. of Town of Clarkstown, 43 AD3d 1037, 1037 [2007]; accord Ruffino v Green, 72 AD3d 785, 786 [2010]). However, “[t]he doctrine . . . applies only to legal determinations that were necessarily resolved on the merits in [a] prior decision, and to the same questions presented in the same case” (Mosby v Parilla, 140 AD3d 1129, 1130-1131 [2016] [internal quotation marks omitted]; see Ramanathan v Aharon, 109 AD3d 529, 530 [2013]; Erickson v Cross Ready Mix, Inc., 98 AD3d 717, 717 [2012]).

Here, the doctrine of the law of the case is inapplicable, because the order entered July 14, 2016, reflects that summary judgment was awarded in favor of the moving defendants upon grounds that were specific to those defendants.

Landis v 383 Realty Corp., 173 AD3d 636 [2d Dept. 2019]

This action was commenced in Supreme Court and transferred to Surrogate’s Court upon the death of defendant Bunita L. Weiner. Before the transfer, plaintiff had moved for summary judgment, and Supreme Court (Barry Ostrager, J.) had denied the motion in an order entered July 31, 2017. That ruling, which plaintiff did not appeal, remained law of the case and could not be contravened by a court of coordinate jurisdiction (Grossman v Meller, 213 AD2d 221, 224 [1st Dept 1995]). Thus, the Surrogate correctly denied the instant motion for summary judgment on the ground that, as she said, “the substance of [plaintiff’s] motion was already squarely decided against him” by Supreme Court.

OSC issues

U.S. Bank Trust, N.A. v DeLuca, 173 AD3d 1242 [2d Dept. 2019]

The Supreme Court declined to sign the proposed order to show cause and issued an order to that effect dated November 7, 2016.

By decision and order on motion dated January 9, 2017, this Court granted the defendant leave to appeal from the Supreme Court’s order declining to sign the proposed order to show cause and stayed the foreclosure sale of the subject property pending the hearing and determination of the appeal.

“The court in a proper case may grant an order to show cause, to be served in lieu of a notice of motion, at a time and in a manner specified therein” (CPLR 2214 [d]). The CPLR does not give a definition of a “proper case,” so the decision to sign an order to show cause is within the judge’s discretion (see Siegel & Connors, NY Prac § 248 [6th ed]). Upon review of the record, the Supreme Court did not improvidently exercise its discretion by declining to sign the proposed order to show cause, as the defendant failed to rebut the presumption of proper service of the relevant documents established by the process servers’ affidavits (see US Bank, N.A. v Daskal, 164 AD3d 709, 711 [2018]; HSBC Bank USA, N.A. v Whitter, 159 AD3d 942, 945 [2018]; Deutsche Bank Natl. Trust Co. v O’King, 148 AD3d 776, 776-777 [2017]).

Cypress Hills Mgt., Inc. v Lempenski, 173 AD3d 830] [2d Dept. 2019]

After defaulting in this action, the defendant attempted to move by order to show cause to vacate his default, asserting that the Supreme Court did not have jurisdiction over him because he had never been served. The Supreme Court, Kings County (Devin P. Cohen, J.), did not sign the order to show cause, but nevertheless purported to deny the application on the merits in an order dated July 5, 2017. The defendant then filed a second order to show cause, seeking the same relief as his prior application. The Supreme Court, Kings County (Lawrence Knipel, J.), signed the order to show cause and allowed the motion to proceed. However, the court subsequently denied the motion on the ground that it could not overrule the decision of another Supreme Court Justice. The defendant appeals.

By declining to sign the first order to show cause, Justice Cohen, in effect, refused to permit the defendant to bring on that motion seeking to vacate his default. Consequently, the order dated July 5, 2017, purporting to deny that motion on the merits, was improper because there was no pending motion. While the defendant could have sought to have this Court review Justice Cohen’s refusal to sign the order to show cause (see CPLR 5704 [a]; Matter of Greenhaus v Milano, 242 AD2d 383 [1997]), he instead chose to simply re-apply for an order to show cause before a different Supreme Court Justice. One Supreme Court Justice should not sign an order to show cause refused by a colleague, assuming that the supporting papers are the same. Nevertheless, under the circumstances of this case, the order to show cause having been signed by a different Supreme Court Justice, the motion thus allowed should have been determined on its merits as the order dated July 5, 2017, did not represent the determination of a prior motion by a Justice of coordinate jurisdiction.

The procedural morass which occurred here is the result of two fundamental errors. First, a court which declines to sign an order to show cause, and thus refuses to allow that motion to be made, should not proceed to act as if the motion had in fact been made. If the court declines to sign an order to show cause, that is all it should do. Second, a remedy of a party whose proposed order to show cause has been refused is to seek relief from the Appellate Division pursuant to CPLR 5704 (a). The remedy is not to simply re-submit the same application to the same or a different Supreme Court Justice.

Discovery mid-trial (CPLR 3102(d), law of the case, and willful refusal

Matter of Michael R. v Amanda R., 2019 NY Slip Op 06454 [2d Dept. 2019]

A party may seek additional disclosure after trial commences only by permission of the trial court on notice (CPLR 3102[d]). Here, the father never sought permission for posttrial discovery. Nor do the father’s motion papers demonstrate any reason why he should have been permitted to pursue additional discovery more than a year after trial commenced. In view of this, and the fact that the mother faced contempt penalties if she were unable to present evidence about her ability to pay, the Support Magistrate improvidently exercised his discretion in “precluding” the mother from presenting evidence and testimony that he had already admitted into evidence at trial more than a year previously.


Third, contrary to the Family Court’s conclusion that the mother was also barred from objecting to the amount of arrears by the doctrine of law of the case, that doctrine is only applicable to “legal determinations that were necessarily resolved on the merits in a prior decision” (J.P. Morgan Sec., Inc. v Vigilant Ins. Co., 166 AD3d 1, 8 [1st Dept 2018] [emphasis added] [internal quotation marks omitted]). Since the mother’s earlier-filed objections were denied on procedural grounds, the application of the doctrine of the law of the case did not apply under the circumstances here.

Rosenberg & Estis, P.C. v Bergos, 18 AD3d 218 [1st Dept. 2005]

The record in this attorney fee dispute discloses that defendants willfully refused or simply failed to avail themselves of the opportunity to take plaintiff’s deposition prior to the deadline set forth in the preliminary conference stipulation, and willfully refused to obtain copies of documents that defense counsel had already inspected and tagged for copying. Under these circumstances, defendants’ motion to vacate the note of issue was properly denied since the certificate of readiness correctly represented that defendants had waived any right they had to additional discovery (cf. Munoz v 147 Corp., 309 AD2d 647, 648 [2003]; Ortiz v Arias, 285 AD2d 390 [2001]).


Intervention (CPLR 1012 and 1013)

Town of Warwick v Black Bear Campgrounds, 168 AD3d 1020 [2d Dept. 2019]

Intervention pursuant to either CPLR 1012 or 1013 requires a timely motion (see CPLR 1012, 1013; Castle Peak 2012-1 Loan Trust v Sattar, 140 AD3d 1107, 1108 [2016]; U.S. Bank N.A. v Bisono, 98 AD3d 608, 609 [2012]). Under the circumstances presented here, we agree with the Supreme Court’s determination to deny, as untimely, the proposed intervenors’ motion for leave to intervene (see Matter of Rutherford Chems., LLC v Assessor of Town of Woodbury, 115 AD3d 960, 961 [2014]; Matter of Arcelormittal Lackawanna LLC v City of Lackawanna, 66 AD3d 1365, 1365-1366 [2009]; Rectory Realty Assoc. v Town of Southampton, 151 AD2d 737, 737-738 [1989]).