Author: DMG

Interpretation of Contracts; SOLD!

U.S. Philips Corp. v EMI Music, Inc., 2009 NY Slip Op 06135 (App. Div., 2nd, 2009)

"[A] written agreement that is complete, clear and unambiguous on its
face must be enforced according to the plain meaning of its terms" (Greenfield v Philles Records, 98 NY2d 562, 569; see Salerno v Odoardi, 41 AD3d 574,
575). " [E]xtrinsic and parol evidence is not admissible to create an
ambiguity in a written agreement which is complete and clear and
unambiguous upon its face'" (W.W.W. Assocs. v Giancontieri, 77 NY2d 157, 163, quoting Intercontinental Planning v Daystrom, Inc., 24
NY2d 372, 379). Contrary to the defendants' contention, the Supreme
Court properly found that the language of the parties' license
agreement was clear and unambiguous as to the payment by the defendants
of certain royalties for compact discs that were "sold," even if the
compact discs were later returned by the defendants' customers. In this
regard, the subject agreement provided that the defendants would be
responsible for paying royalties to the plaintiff for compact [*2]discs
"made, used, sold or otherwise disposed of" by the defendants. The
agreement further provided that a product "shall be considered sold
when invoiced, or if not invoiced, when delivered to a party other than
the manufacturer." Accordingly, the plaintiff made a prima facie
showing of its entitlement to judgment as a matter of law on the issue
of liability with respect to so much of the complaint as sought the
payment of certain royalties for compact discs that were sold but later
returned by the defendants' customers (see Meirowitz v Bayport-Bluepoint Union Free School Dist., 57 AD3d 858, 860). In opposition thereto, the defendants failed to raise a triable issue of fact (see Alvarez v Prospect Hosp., 68 NY2d 320, 324).

The bold is mine.

CPLR R. 3212(f) facts within the exclusive control of the moving party

CPLR R. 3212 Motion for summary judgment

(f) Facts unavailable to opposing party

Desena v City of New York, 2009 NY Slip Op 06160 (App. Div., 2nd, 2009)

Keyspan established its prima facia entitlement to judgment as a
matter of law by submitting evidence that it did not create the alleged
roadway defect that caused the plaintiff's injuries (see Alvarez v Prospect Hosp., 68
NY2d 320, 324). The plaintiff, however, established that facts
essential to resolution of this case exist, but are within the
exclusive control of Keyspan. Pursuant to CPLR 3212(f), a trial court
has the discretion to deny a motion for summary judgment or order a
continuance to allow disclosure if "facts essential to justify
opposition may exist, but cannot then be stated." There must be a
likelihood of discovery leading to such evidence (see Mazzaferro v Barterama Corp., 218
AD2d 643), and the party opposing the motion for summary judgment must
allege the existence of proof in admissible form which presents a
triable issue of fact or an acceptable excuse for the absence of
first-hand knowledge (see Chemical Bank v PIC Motors Corp., 58 NY2d 1023).

In opposition to the motion for summary judgment, the plaintiff submitted the [*2]affirmation
of his attorney alleging that the Keyspan foreman, who was present at
the Keyspan work site on the date work was performed and completed and
who, to date, has not yet been deposed, will provide facts that will
raise a triable issue of fact and are essential to the plaintiff's
ability to defend against this motion for summary judgment. To the
extent that Keyspan's motion for summary judgment is based entirely
upon evidence which refers to work which was planned or permitted to be
performed at the work site, and not upon evidence showing what work was
actually performed, the deposition of the Keyspan foreman, who was
actually present, is necessary to resolve this factual dispute.

The bold is mine.

CPLR R. 5526 Record insufficient — Appeal dismissed

CPLR R. 5526 Content and form of record on appeal

Keita v United Parcel Serv., 2009 NY Slip Op 06165 (App. Div., 2nd, 2009)

In two decisions and orders on motion, dated December 24, 2008, and
March 12, 2009, respectively, this Court directed the plaintiffs to
serve and file a supplemental record containing, inter alia, the
answers to the complaint and "the notice of motion and affidavits
annexed thereto, answering affidavits, if any, and reply affidavits, if
any, submitted in connection with the motion that resulted in the order
being appealed." The plaintiffs have failed to do so.

It is the appellants' obligation to assemble a proper record on appeal (see Salem v Mott, 43 AD3d 397; Cohen v Wallace & Minchenberg, 39 AD3d 689, 689). In this regard, "[t]he record must contain all of the relevant papers that were before the Supreme Court" (Cohen v Wallace & Minchenberg, 39 AD3d 689; see CPLR 5526; Matter of Allstate Ins. Co. v Vargas, 288
AD2d 309, 310). Where, as here, meaningful appellate review of the
Supreme Court's determination is made "virtually impossible" because of
the incomplete nature of the record submitted, dismissal of the appeal
is the appropriate disposition (Salem v Mott, 43 AD3d 397, 397).

The bold is mine,

Best Evidence Rule Objection was Properly Overruled

Madison-68 Corp. v Malpass, 2009 NY Slip Op 06154 (App. Div., 1st, 2009)

Plaintiff's objection, made under the best evidence rule, to the
admission of the lease rider was properly overruled because it had
offered into evidence a copy of the same document. The J.H.O. at times
cut off questioning, but did so in an evenhanded manner to expedite the
trial, never amounting to prejudicial error (see Lewis v Port Auth. of N.Y. & N.J., 8 AD3d 205,
206 [2004]). Nor was the judgment against the weight of the evidence,
since the case essentially turned on the parties' competing oral
testimony. The issue of the prevailing party notwithstanding, it was
error for the J.H.O. to determine that defendants were entitled to an
award of attorneys' fees. In Oxford Towers Co., LLC v Wagner (58 AD3d 422 [2009]), this Court held that an identical lease provision was not covered by Real Property Law § 234.

The bold is mine.

Due Process and Brain Surgery

Matter of Detres v New York City Hous. Auth., 2009 NY Slip Op 06152 (App. Div., 1st, 2009)

An evidentiary hearing before the court to supplement the record should
not have been directed, and instead the matter should have been
remitted to the Housing Authority for further proceedings (see Matter of Ansonia Assoc. v State Div. of Hous. & Community Renewal, 147 AD2d 420, 421 [1989]; Matter of Board of Educ. of Pleasantville Union Free School Dist. v Ambach,
132 AD2d 257, 261 [1987]). Further consideration by the agency is
warranted because petitioner underwent major brain surgery some five
months before the administrative hearing and exhibited some confusion
at the hearing. As a result of the Hearing Officer's failure to
question petitioner, who represented herself pro se, about her medical
issues and their ramifications, petitioner was not afforded a full
opportunity to be heard, particularly with respect to when her [*2]tenancy commenced (see Matter of Hall v Municipal Hous. Auth. for City of Yonkers, 57 AD2d 894, 894-895 [1977], appeal dismissed 42 NY2d 973 [1977], lv denied
42 NY2d 805 [1977] [due process affords public housing tenants the
right of opportunity to be heard]. Pursuant to Supreme Court's
directive, petitioner submitted evidence that she had co-resided in the
apartment with her mother for more than the requisite year and that
respondent implicitly approved of the co-residency (see Matter of McFarlane v New York City Hous. Auth., 9 AD3d 289, 291 [2004]).

The bold is mine.

CPLR § 7503 Arbs

CPLR § 7503 Application to compel or stay arbitration; stay of action; notice of intention to arbitrate

Shah v Monpat Constr., Inc., 2009 NY Slip Op 06132 (App. Div., 2nd, 2009)

Arbitration is favored in New York State as a means of resolving
disputes, and courts should interfere as little as possible with
agreements to arbitrate (see Matter of Smith Barney Shearson v Sacharow, 91 NY2d 39, 49; Matter of Miller, 40 AD3d 861,
861-862). There is a substantial countervailing consideration as well:
"by agreeing to arbitrate a party waives in large part many of his
normal rights under the procedural and substantive law of the State" (Matter of Marlene Indus. Corp. [Carnac Textiles], 45 NY2d 327, 333 334; see Matter of Miller, 40
AD3d at 862). For that reason, "a party will not be compelled to
arbitrate and, thereby, to surrender the right to resort to the courts,
absent evidence which affirmatively establishes that the parties
expressly agreed to arbitrate their disputes'" (Matter of Waldron [Goddess], 61 NY2d 181, 183, quoting Schubtex, Inc. v Allen Snyder, Inc., 49 NY2d 1, 6; see TNS Holdings v MKI Sec. Corp. 92 NY2d 335, 339; Matter of Miller, 40 AD3d at 862). "The agreement must be clear, explicit and unequivocal" (Matter of Waldron [Goddess], 61 NY2d at 183; see God's Battalion of Prayer Pentecostal Church, Inc. v Miele Assoc., LLP, 6 NY3d 371, 374; Matter of Miller, 40
AD3d at 862). Once the court has determined the threshold issues of the
existence of a valid agreement to arbitrate, that the party seeking
arbitration has complied with the agreement, and that the claim sought
to be arbitrated would [*3]not be time-barred were it asserted in state court (see CPLR 7502[b]; Matter of Smith Barney, Harris Upham & Co. v Luckie, 85 NY2d 192, 201-202), the remaining issues are for the arbitrator.

Here, the written contract was clear, explicit, and unequivocal
and established a valid agreement to arbitrate. The agreement expressly
adopted Document A201-1997 by reference, in effect, listed it as one of
the "Contract Documents" in Article 1, enumerated it as one of the
"Contract Documents" in Article 8, and referred to it by document
number throughout. Consequently, the arbitration provisions included in
Document A201-1997 are part of the written contract (see Matter of Level Export Corp. [Wolz, Aiken & Co.],
305 NY 82, 87). Shah's contention that he never received Document
A201-1997 is unavailing, and his ignorance of its provisions must be
attributed to " negligence or inexcusable trustfulness'" (Matter of Level Export Corp. [Wolz, Aiken & Co.], 305 NY 82, 87, quoting Metzger v Aetna Ins. Co., 227 NY 411, 416]).

The plaintiffs did not contend in the Supreme Court, either in
support of their motion to stay arbitration or in opposition to the
defendants' motion to compel arbitration, that Monpat had not complied
with conditions precedent to arbitration. Consequently, that issue is
not properly before us (see Matter of New York Cent. Mut. Fire Ins. Co. v Daley, 273 AD2d 315; Matter of County of Suffolk v Faculty Assn. of Suffolk County Community Coll., 247
AD2d 472). Indeed, had the issue been raised in the Supreme Court,
Monpat may have been able to present evidence that it had in fact
complied with conditions precedent (see Matter of New York Cent. Mut. Fire Ins. Co. v Daley, 273 AD2d 315; cf. Misicki v Caradonna, 12 NY3d 511; Weiner v MKVII-Westchester, 292 AD2d 597, 598).

In general, where there is a broad arbitration clause, any issue
with respect to changes in the substantive provisions of a contract or
its termination are to be resolved by the arbitrator, unless the
modification or termination relates to the arbitration clause itself (see Matter of Cassone, 63 NY2d 756, 759; Matter of All Metro Health Care Servs. Inc. v Edwards, 57 AD3d 892; Matter of Meetze [La Belle], 295 AD2d 991, 992; Matter of Cantor Fitzgerald, L.P. [Ginsberg],
228 AD2d 591). Here, the plaintiffs' contention that the written
contract was abandoned was not directly related to the arbitration
provisions, so the issue of abandonment should be left for the
arbitrator. The issue of the statute of limitations is so intertwined
with the parties' substantive contentions and the contentions regarding
abandonment that the issue of the statute of limitations should be left
to the arbitrator (see Matter of Corbo v Les Chateau Assoc., 127
AD2d 657, 658). As well, issues regarding proper service of the demand
for arbitration should be determined by the arbitrator (see Matter of Rockland County v Primiano, 51 NY2d 1, 8; Cooper v Bruckner, 21 AD3d 758, 759; J. Castronovo, Inc. v Hillside Dev. Corp., 140 AD2d 585).

Finally, the written contract was between Shah and Monpat, and
there is no clear evidence that the plaintiffs ever agreed to arbitrate
any disputes with Patel and RB. Consequently, the Supreme Court should
not have compelled the plaintiffs to arbitrate their claims against
those defendants (see Estate of Castellone v JP Morgan Chase Bank, N.A., 60 AD3d 621, 623).

The bold is mine.

Standing; CPLR R. 3211

CPLR R. 3211 Motion to dismiss

RLI Ins. Co. v Steely, 2009 NY Slip Op 06130 (App. Div., 2nd, 2009)

The defendant William Steely sought insurance coverage for a boating
accident pursuant to, inter alia, a homeowner's policy issued to him by
the defendant New York Central Mutual Fire Insurance Company
(hereinafter NY Mutual), and an umbrella policy issued to him by the
plaintiff, RLI Insurance Company. NY Mutual allegedly denied coverage
on the ground that, inasmuch as Steely owned the boat on the date of
the accident, there was no coverage because of a specific exclusion
under its policy. The plaintiff commenced this action for a judgment
declaring, inter alia, that NY Mutual was obligated to provide coverage
to Steely because he did not, in fact, [*2]own
the boat on the date of the accident, and that any such coverage
provided by the plaintiff's policy was excess to any coverage provided
by NY Mutual's policy.

NY Mutual moved, inter alia, pursuant to CPLR 3211 to dismiss
the complaint for lack of standing insofar as asserted against it. NY
Mutual argued, among other things, that the plaintiff lacked standing
to challenge its disclaimer of coverage to its insured. The Supreme
Court, inter alia, granted that branch of NY Mutual's motion which was
to dismiss the complaint insofar as asserted against it. We reverse the
order insofar as appealed from.

We find that the plaintiff has standing to challenge NY
Mutual's disclaimer of coverage to its insured. "A plaintiff need not
be privy to an insurance contract to commence a declaratory judgment
action to determine the rights and obligations of the respective
parties, so long as the plaintiff stands to benefit from the policy" (Mortillaro v Public Serv. Mut. Ins. Co., 285 AD2d 586, 587). Here, the plaintiff clearly stands to benefit from NY Mutual's policy.

The bold is mine.

Reasonbable Excuse and (Potentially?) Meritorious Defense: CPLR R. 5015

CPLR R. 5015 Relief from judgment or order

Kramer v Oil Servs., Inc., 2009 NY Slip Op 06121 (App. Div., 2nd, 2009)

A defendant seeking to vacate its default in appearing or answering the
complaint must provide a reasonable excuse for the default and
demonstrate the existence of a meritorious defense to the action (see CPLR 5015[a][1]; Lemberger v Congregation Yetev Lev D'Satmar, Inc., 33 AD3d 671, 672; Krieger v Cohan, 18 AD3d 823; Kaplinsky v Mazor,
307 AD2d 916). The only excuse proffered by the appellant for the
default in serving a timely answer was the more than one-year delay
caused by its insurance carrier in providing a defense which, under the
circumstances, was insufficient (see Toland v Young, 60 AD3d 754; Martinez v D'Alessandro Custom Bldrs. & Demolition, Inc., 52 AD3d 786; Canty v Gregory, 37 AD3d 508; Lemberger v Congregation Yetev Lev D'Satmar, Inc., 33 AD3d at 672; Krieger v Cohan, 18 AD3d 823; Hegarty v Ballee, 18 AD3d [*2]706). Accordingly, the Supreme Court providently exercised its discretion in denying the appellant's motion.

Recently I received a comment questioning why some decision require defendant to show a "potentially" meritorious defense and others require them to show meritorious defense.  I suggested that "potentially meritorious" might be a middle ground between an "interests of justice" vacatur and and a normal meritorious defense vacatur.  I know, that sentence is anything but clear.  But I think you get the idea.

So, yeah, I'm still looking into it.  I meant to do it over the weekend, but life got in the way.  And I'm lazy.  Eventually I will get to it, I swear.

The bold is mine.

Conclusory Expert Affidavit Just Won’t Do it

CPLR R. 3212 Motion for summary judgment

Ghany v Hossain, 2009 NY Slip Op 06116 (App. Div., 2nd, 2009)

On a motion for summary judgment, the movant must make a prima facie showing of entitlement to judgment as a matter of law (see Winegrad v New York Univ. Med. Ctr., 64 NY2d 851; Zuckerman v City of New York,
49 NY2d 557). Here, the defendants satisfied their burden and, in
opposition, the plaintiff failed to raise a triable issue of fact (see Grob v Kings Realty Assoc., 4 AD3d 394,
395). In opposition to the motion, the plaintiff submitted, inter alia,
the affidavit of an expert witness, who opined, in pertinent part, that
the condition of the subject stairs and the upper portion of the
handrail were substantial factors in causing the decedent's injuries.
Even if the stairway and handrail were defective, as the expert opined,
the Supreme Court properly determined that his conclusion linking the
alleged defects to the decedent's fall was purely speculative (see Grob v Kings Realty Assoc., 4 AD3d at 395). Accordingly, the Supreme Court properly awarded the [*2]defendants summary judgment dismissing the complaint.

Ismail v Tejeda, 2009 NY Slip Op 06118 (App. Div., 2nd, 2009).

The defendants did not meet their prima facie burden of establishing
that the plaintiff did not sustain a serious injury within the meaning
of Insurance Law § 5102(d) as a result of the subject accident (see Toure v Avis Rent A Car Sys., 98 NY2d 345, 352; Gaddy v Eyler,
79 NY2d 955). The plaintiff clearly alleged in his bill of particulars
that he had sustained, inter alia, a medically-determined injury or
impairment of a nonpermanent nature which prevented him from performing
substantially all of the material acts constituting his usual and
customary activities for not less than 90 days during the 180 days
immediately following the accident. However, the affirmed report of the
defendants' examining physician did not specifically relate any of his
findings to the 90/180 day category of serious injury for the relevant
time period following the accident, and the defendants did not submit
any other evidence to refute the plaintiff's claim (see Neuburger v [*2]Sidoruk, 60 AD3d 650; Miller v Bah, 58 AD3d 815; Scinto v Hoyte, 57 AD3d 646).
Since the defendants failed to meet their prima facie burden with
respect to the 90/180 day category of a serious injury, it is
unnecessary to examine the sufficiency of the plaintiff's opposition
papers in this regard (see Neuburger v Sidoruk, 60 AD3d at 652; Miller v Bah, 58 AD3d at 816; Scinto v Hoyte, 57 AD3d at 647).

Far too often, counsel and judges alike ignore this important concept: An expert's affidavit (or affirmation), even if unrebutted, if conclusory or insufficient, will not carry the party offering the affidavit.

The bold is mine.