Author: DMG

CPLR R. 5015(a)(2)

CPLR R. 5015 Relief from judgment or order

(a) On motion.
The court which rendered a judgment or order may relieve a party from
it upon such terms as may be just, on motion of any interested person
with such notice as the court may direct, upon the ground of:

2.
newly-discovered evidence which, if introduced at the trial, would
probably have produced a different result and which could not have been
discovered in time to move for a new trial under section 4404

Woori Am. Bank v Winopa Intl. Ltd., 2009 NY Slip Op 04734 (App. Div., 1st, 2009)

Defendants were properly denied relief under CPLR 5015 (a)(2) since
they did not show that their new evidence refuted the essential
findings underlying the order and would probably have resulted in a
different outcome (see Bongiasca v Bongiasca, 289 AD2d 121, 122 [2001]). The evidence submitted did not establish that the statements in question were fabricated (cf. McCarthy v Port of N.Y. Auth.,
21 AD2d 125, 127 [1964]). In any event, Justice Heitler's determination
did not rest solely on those statements, but also on defendants'
initial failure to deny their indebtedness and their inability to offer
any other evidence that they had made the payments as they claimed.

The bold is mine.

Appellate Procedure

Maksuta v Galiatsatos, 2009 NY Slip Op 04033 (App. Div., 2nd, 2009)

As a general rule, this Court does not consider an issue on a subsequent appeal which was [*2]raised
or could have been raised in an earlier appeal which was dismissed for
lack of prosecution, although the Court has the inherent jurisdiction
to do so (see Rubeo v National Grange Mut. Ins. Co., 93 NY2d 750; Bray v Cox, 38
NY2d 350). The plaintiffs appealed from the order dated March 7, 2007,
which, inter alia, granted that branch of the motion of the defendant
Sorbara Construction Corp. (hereinafter Sorbara) which was for summary
judgment dismissing the complaint insofar as asserted against it, but
abandoned that appeal after the Supreme Court, in an order dated
February 6, 2008, made, in effect, upon renewal and reargument, adhered
to the original determination. As a consequence of the plaintiffs'
failure timely to perfect their appeal from the order dated March 7,
2007, that appeal was dismissed for failure to prosecute. The better
practice would have been for the plaintiffs to withdraw their prior
appeal, rather than abandon it. Nonetheless, under the circumstances,
we exercise our discretion to review the issues raised on the
plaintiffs' appeal from the order made, in effect, upon renewal and
reargument (see generally Cesar v Highland Care Ctr., Inc., 37 AD3d 393).

The Supreme Court, in effect, upon renewal and reargument,
properly adhered to its original determination. Sorbara established,
prima facie, that its alleged negligence was not a proximate cause of
the accident (see generally Derdiarian v Felix Contr. Corp., 51 NY2d 308; Mannion v Lizza Indus., 127
AD2d 567). In opposition, the plaintiffs and the defendants C.
Galiatsatos, a/k/a Chrisostomos Galiatsatos, and Pavlos Galiatsatos,
failed to raise a triable issue of fact.

…

Motion by the respondent to dismiss an appeal by the plaintiffs from an
order of the Supreme Court, Kings County, dated February 6, 2008, on
the ground that review of the order is precluded by the doctrine
enunciated in Rubeo v National Grange Mut. Ins. Co. (93 NY2d 750) and Bray v Cox (38
NY2d 350). By decision and order on motion of this Court dated August
21, 2008, the motion was held in abeyance and was referred to the panel
of Justices hearing the appeal for determination upon the argument or
submission of the appeal.

Xi Fang Temple v Hopetel, LLC, 2009 NY Slip Op 04053 (App. Div., 2nd, 2009)

As a general matter, this Court does not consider any issue raised on a
subsequent appeal that was raised, or could have been raised, in an
earlier appeal that was dismissed for lack of prosecution, although the
Court has the inherent jurisdiction to do so (see Rubeo v National Grange Mut. Ins. Co., 93 NY2d 750, 756; Bray v Cox, 38 NY2d 350, 353; Matter of City of New York, S. Jamaica I Urban Renewal Area, 41 AD3d 595).
Here, the plaintiff previously appealed from the order and judgment
entered March 22, 2006, in which the Supreme Court determined, inter
alia, that the agreement between the parties did not satisfy the
statute of frauds and, therefore, was not enforceable as a real estate
sales contract, and dismissed the second amended complaint. That appeal
was dismissed for failure to prosecute by decision and order on motion
of this Court dated August 13, 2007. The dismissal of that appeal
constituted an adjudication on the merits with respect to all issues
regarding the agreement that could have been reviewed therein, and
there is no basis to review the same issues on this appeal (see Rubeo v National Grange Mut. Ins. Co., 93 NY2d at 756; Matter of Talt v Murphy, 35 AD3d 486; Motelson v Candon Ct. Homeowners Assn., [*2]Inc., 34 AD3d 543, 543-544). Accordingly, we dismiss the plaintiff's current appeal.

The bold is mine.

Law of the case

Yetnikoff v Mascardo, 2009 NY Slip Op 04712 (App. Div., 1st, 2009)

Plaintiff moved to vacate his default, arguing he had never received
the landlord defendants' motion for summary judgment on the
counterclaims. This motion was also denied on the ground that plaintiff
failed to provide a reasonable excuse for his default or evidence of a
meritorious defense.

With respect to the court's modification of its statement
concerning the landlord's position on rescission, the court correctly
found that counsel's statement that she had made a mistake in
communicating to the court was new evidence properly considered on the
motion. The law of the case is not implicated when a court alters its
own ruling (see Wells Fargo Bank, N.A. v Zurich Am. Ins. Co., 59 AD3d 333, 335 [2009]).

Riskin v Pam Vic Enters., Ltd., 2009 NY Slip Op 04730 (App. Div., 1st, 2009)

The court did not err in re-referring the matter of calculating the
amount due to plaintiffs to a referee, inasmuch as no report was filed
after the previous referral. Plaintiffs' claim, that the previous grant
of partial summary judgment to them as against defendants in this
foreclosure action became the "law of the case" and extinguished the
claims of the proposed intervenor, Ted Singer, is unpreserved. Were we
to review it, we would find that the law of the case doctrine does not
apply, since Singer was not a party to the earlier proceedings herein (see Hass & Gottlieb v Sook Hi Lee, 11 AD3d 230, 231-232 [2004]).

The bold is mine.

Laches; CPLR § 3013

CPLR § 3013 Particularity of statements generally

Commissioners of the State Ins. Fund v Ramos, 2009 NY Slip Op 04361 (App. Div. 1st, 2009)

Insofar as pertinent, defendants' answer contains an affirmative
defense alleging, in its entirety, that "[p]laintiff's claims are
barred by the equitable doctrine of laches." In opposition to
plaintiff's motion to dismiss this defense, defendants' attorney
submitted an affirmation arguing that the alleged laches is
"self-explanatory" in that this action seeks to collect a 2004 judgment
entered in a 1997 action against the judgment debtor to recover unpaid
1992/1993 workers' compensation premiums. The motion court, in the
first order on appeal, correctly dismissed the defense as pleading only
a bare legal conclusion without supporting facts (CPLR 3013; see Robbins v Growney,
229 AD2d 356, 357-358 [1996]). Concerning the second order on appeal,
defendants have appealed only from that portion of the order as denied
that branch of their motion as sought to reargue or renew plaintiff's
motion to dismiss the laches defense. Thus, whether the motion court
properly denied the branch of the motion as sought leave to amend the
answer to assert the facts supporting the defense of laches is not
properly before this Court (see City of Mount Vernon v Mount Vernon Hous. Auth.,
235 AD2d 516, 517 [1997]). In any event, for the reasons stated, the
defense of laches is unavailable. We would add that the affirmation of [*2]defendants'
attorney submitted in support of the motion to amend the answer lacks
probative value with respect to the prejudice allegedly caused
defendants by plaintiff's delay of prosecution against the judgment
debtor (see Zuckerman v City of New York, 49 NY2d 557, 562-563 [1980]).

The bold is mine.

Informal Judicial Admission

Dietrich v Puff Cab Corp., 2009 NY Slip Op 04853 (App. Div., 2nd, 2009)

In opposition, the plaintiffs raised a triable issue of fact by the
submission of the reports of Dr. William Buchmann. Dr. Buchmann's
reports demonstrated that Dietrich's range of motion in her cervical
spine was significantly limited, when read in conjunction with the
report of the defendants' expert, Dr. Mesh. Dr. Mesh's report had set
forth the applicable normal ranges of motion against which Dr.
Buchmann's findings could be compared. A statement by an expert that is
put forward by a party in litigation constitutes an informal judicial
admission (see Chock Full O'Nuts Corp. v NRP LLC I, 47 AD3d 189, 192; Matter of City of New York,
73 AD2d 932, 933) that is admissible against, although not binding
upon, the party that submitted it. Thus, just as a nonmoving plaintiff
in a serious injury case may rely upon the unsworn report of the
plaintiff's treating physician once it has been submitted by the moving
defendant (see Pagano v Kingsbury, 182 AD2d 268), a nonmoving
plaintiff may also rely upon the statement by the moving defendant's
expert of the normal range of motion (see Djetoumani v Transit, Inc., 50 AD3d 944, 946).

The bold is mine.

CPLR § 3101(a)

CPLR § 3101 Scope of disclosure

Rivera v NYP Holdings Inc., 2009 NY Slip Op 04706 (App. Div., 1st, 2009)

We conclude that the denial of defendants' motion to compel constituted
an improvident exercise of discretion. Full disclosure is required of
"all matter material and necessary" to the defense of an action (CPLR
3101[a]), and the words "material and necessary" are "to be interpreted
liberally to require disclosure . . . of any facts bearing on the
controversy" (Allen v Crowell-Collier Publ. Co., 21 NY2d 403,
406 [1968]). Defendants are entitled to the discovery they seek in
their efforts both to establish their defense of truth to plaintiff's
defamation claims (see Wright v Snow, 175 AD2d 451 [1991], lv dismissed 79 NY2d 822 [1991]), and to defend against plaintiff's assertion of damage to his reputation (cf. Burdick v Shearson Am. Express, 160 AD2d 642 [1990], lv denied 76 NY2d 706 [1990]). Moreover, defendants are entitled to the opportunity to demonstrate the truth of the articles as a wholesee Miller v Journal News,
211 AD2d 626, 627 [1995]), warranting disclosure even as to assertions
in those articles that are not directly challenged in plaintiff's
complaint. Therefore, the inquiries related to grand jury testimony by
plaintiff, information sought from or provided by plaintiff to the
Commission on [*2]Judicial Conduct, and
plaintiff's arrest record, if any, seek information sufficiently
material and relevant to the defense of the action to warrant
disclosure. (

Laguna v Mario's Express Serv., Inc., 2009 NY Slip Op 04869 (App. Div., 2nd, 2009)

In an action to recover damages for personal injuries, the plaintiff
appeals, as limited by her brief, from so much of an order of the
Supreme Court, Kings County (Bayne, J.), dated November 21, 2007, as
granted the defendants' motion for renewal and reargument of their
prior oral application for access to the plaintiff's medical records
"beyond a 3 year period," which was denied by order of the same court
(Ambrosio, J.) dated June 28, 2007, and upon renewal and reargument
granted the defendants access to "the complete medical records relating
the plaintiffs' initial diagnosis & follow up treatment to present
for cerebral palsy."

ORDERED that the order dated November 21, 2007, is reversed
insofar as appealed from, on the facts and in the exercise of
discretion, with costs, and the motion is denied.

The evidence submitted by the defendants upon their motion for
renewal and reargument was insufficient to justify a new determination.
The defendants failed to establish that the additional disclosure was
material and necessary to the defense of the action (see Cynthia B. v New Rochelle Hosp. Med Ctr, 60 NY2d 452, 465, 457; Chevrin v Macura, 28 AD3d 600; DeStrange v Lind, 277
AD2d 344), nor did they demonstrate that "access to earlier medical
records would result in the discovery of admissible or relevant
evidence" (DeStrange v Lind, 277 AD2d at 345).

The bold is mine.

CPLR § 1601(1)

CPLR § 1601 Limited liability of persons jointly liable

Cunha v City of New York, 2009 NY Slip Op 04698 (Ct. App., 2009)

Haks also raises the issue of the potential liability of other parties and relies on our recent decision in Frank v Meadowlakes Dev. Corp. (6 NY3d 687 [2006]) for the proposition that the City is entitled to only partial indemnification from Haks. In Frank,
we held that CPLR article 16 limited the amount that can be recovered
in indemnity when a tortfeasor's liability is 50% or less. In that
case, the injured plaintiff sued the owner of the job-site,
Meadowlakes, and the general contractor, DJH Enterprises, Inc. ("DJH").
Meadowlakes thereafter brought a third-party action for indemnification
against plaintiff's employer, Home Insulations and Supply, Inc.
("Home"). Since the claim arose before the 1996 amendment to Workers
Compensation Law sec. 11, Home was not immune from third-party
liability. After a trial, the jury apportioned fault in the amount of
10% to plaintiff, 10% to Home and 80% to DJH. The court also directed a
verdict against Meadowlakes and DJH based upon a violation of Labor Law
§ 240 (1). Plaintiff settled with Meadowlakes for $1.4 million and with
DJH for $300,000.

Meadowlakes moved for common-law indemnification against Home
for 100% of its settlement liability. Home appealed arguing, as
relevant to this appeal, that because it was found only 10% at fault,
it should be liable to Meadowlakes for only its proportionate share of
negligence. We agreed, finding that Meadowlakes was not entitled to
100% recovery. In doing so, we held that the savings provision of CPLR
1602 (2) (iv) applied and that recovery from Home, as a party found 10%
liable, was limited to its proportionate share with respect to
noneconomic damages.

This case differs from Frank, however, in that no
Article 16 issue exists inasmuch as no other tortfeasor could be found
liable for plaintiff's injuries. Haks argues that the jury must have
found another entity liable as they apportioned only 40% fault to Haks.
This argument is flawed.

A likely interpretation of the jury's verdict is that the jury
allocated culpability to plaintiff's employer, JLJ – but JLJ's fault
was irrelevant and should not have been before the jury. Plaintiff did
not sustain a grave injury and thus, his employer was not subject to
being part of the action (see Workers Compensation Law sec. 11;
CPLR 1601 [1]). To the extent the jury may have considered plaintiff
himself at fault, his negligence must be excluded because he, like JLJ,
cannot be an indemnitor (see Frank, 6 NY3d at 693). It is
unlikely that the jury allocated active fault to the City; to the
extent the verdict is unclear on that issue, the burden was on Haks to
clarify it, by proposing an appropriate question to the jury.

Moreover, no apportionment for any other third-party was
requested by Haks at any time during the proceedings. No evidence was
submitted at trial that any other entity was negligent, nor could have
any other entity been found negligent based upon the instructions
provided to the jury, the verdict sheet, or the charge provided to the
jury. Consequently, once Haks was found to be negligent—and since Haks
was the only possible negligent party to the lawsuit—the City was
entitled to 100% indemnification from Haks.

The bold is mine.

CPLR R. 4404; Court of Appeals

CPLR  R.4404 Post-trial motion for judgment and new trial

Lang v Newman, 2009 NY Slip Op 04696 (Ct. App., 2009)

Plaintiff was transported to a hospital in January 2003 after
awakening with numbness on the left side of her body, slurred speech
and facial drooping. After arriving in the emergency room, she also
developed a headache. Plaintiff was initially treated by defendant [*2]James
P. Newman, D.O., but his shift ended and defendant Russell J. Firman,
M.D., assumed plaintiff's care. Dr. Firman ordered a CT scan but the
test did not definitively rule out the possibility that there was
bleeding in plaintiff's brain. A routine neurological examination
revealed no abnormalities and plaintiff was administered medication to
treat her headache. Plaintiff declined a more invasive procedure to
determine if her brain was bleeding and was subsequently discharged
with the final diagnosis of a migraine headache.

Shortly after her discharge, plaintiff was examined by her
primary care physician, who believed plaintiff may have been
experiencing a stroke. Plaintiff was sent to a hospital in Syracuse
where an MRI test indicated that she had suffered an ischemic stroke on
the right side of her brain. Shortly thereafter, she was admitted to a
different hospital where she was given anticoagulant medication to
lessen the clotting of her blood and decrease the possibility of a
second stroke. As a result of her stroke, plaintiff suffered permanent
injuries.

Plaintiff commenced this action against Drs. Newman and Firman,
and their medical groups. Although the jury determined that Firman was
not liable for failing to administer an anticoagulant drug, it found
him liable for failing to admit plaintiff to the hospital and that such
negligence was a substantial factor in causing her injuries. The other
defendants were found not liable. Plaintiff was awarded $300,000 in
damages for past pain and suffering. The Appellate Division affirmed
over a two-Justice dissent, concluding that the verdict was supported
by legally sufficient evidence. We agree.

Evidence is legally insufficient to support a verdict if "there
is simply no valid line of reasoning and permissible inferences which
could possibly lead rational men to the conclusion reached by the jury
on the basis of the evidence presented at trial" (Cohen v Hallmark Cards,
45 NY2d 493, 499 [1978]). Plaintiff's expert testified that if Firman
had admitted plaintiff to the hospital rather than discharging her, the
stroke would have been diagnosed, she would have been given an
anticoagulant, and the failure to administer that medicine resulted in
"a little larger stroke than she should have had if she was properly
treated." Despite the fact that the expert also stated that it was
"very hard to quantify" precisely how much additional damage plaintiff
suffered as a result of Firman's negligence, we cannot say that the
jury's finding of liability on this theory was "utterly irrational" (id.) or that no basis of proof existed to support the verdict. Consequently, the verdict was based on legally sufficient evidence.

Finally, Firman's challenge to the consistency of the verdict is
unpreserved and there is no merit to his contention that the damages
were speculative.

IMPORTANT DECISION FOR NY BLOGGERS

Stern v Bluestone, 2009 NY Slip Op 04740 (Ct. App. 2009)

In August 2006, Supreme Court granted Stern summary judgment as to
liability on his first cause of action, concluding that Bluestone's
faxes "indirectly advertise[d] the commercial availability and quality"
of his services as a legal malpractice attorney. Supreme Court also
found "as a matter of law that Bluestone willfully and knowingly
violated the TCPA." In that regard, the court noted that Bluestone "was
served with a similar complaint for violation of the TCPA in 2003,
leading to summary judgment against him in this court [in] 2004." Upon
Bluestone's appeal, the Appellate Division, with two Justices
dissenting, reiterated Supreme Court's reasoning and affirmed. We now
reverse.

In 2006, when it amended its rules implementing the TCPA and
the Junk Fax Prevention Act of 2005 (Pub L 109-21, 119 US Stat 359,
amending 47 USC § 227), the Federal Communications Commission (FCC)
elaborated on what constitutes an "unsolicited advertisement" (see 71 Fed Reg 25967 [2006], codified at 47 CFR

§ 64.1200). With respect to "informational messages" via facsimile, the FCC stated that
[*3]

"facsimile communications that contain only information,
such as industry news articles, legislative updates, or employee
benefit information, would not be prohibited by the TCPA rules. An incidental advertisement contained in such a newsletter does not convert the entire communication into an advertisement . . . Thus, a trade organization's newsletter sent via facsimile would not constitute an unsolicited advertisement, so long as the newsletter's primary purpose is informational, rather than to promote commercial products" (id. at 25973 [emphasis added]).

We
conclude that Bluestone's "Attorney Malpractice Report" fits the FCC's
framework for an "informational message," and thus the 14 faxes are not
"unsolicited advertisement[s]" within the meaning of the TCPA. In these
reports, Bluestone furnished information about attorney malpractice
lawsuits; the substantive content varied from issue to issue; and the
reports did not promote commercial products. To the extent that
Bluestone may have devised the reports as a way to impress other
attorneys with his legal expertise and gain referrals, the faxes may be
said to contain, at most, "[a]n incidental advertisement" of his
services, which "does not convert the entire communication into an
advertisement" (id.). As a final matter, we note that Bluestone
did not cross-move for summary judgment in Supreme Court, and, unlike
Supreme Court and the Appellate Division, we are not empowered to
search the record and grant summary judgment to a nonmoving party (see Merritt Hill Vineyards v Windy Hgts. Vineyard, 61 NY2d 106, 110-111 [1984]).

To read more about this case, head over to  Simple Justice and New York Personal Injury Law blog both contain a great discussion about the case and its implications for bloggers.

CPLR § 3012(b); CPLR § 321(b)&(c)

CPLR § 3012 Service of pleadings and demand for complaint
(b) Service of complaint where summons served without complaint

CPLR § 321 Attorneys
(c) Death, removal or disability of attorney
If an attorney dies, becomes physically or mentally incapacitated, or
is removed, suspended or otherwise becomes disabled at any time before
judgment, no further proceeding shall be taken in the action against
the party for whom he appeared, without leave of the court, until
thirty days after notice to appoint another attorney has been served
upon that party either personally or in such manner as the court
directs.

Moray v Koven & Krause, Esqs., 2009 NY Slip Op 03877 (App. Div., 2nd, 2009)

To avoid dismissal for failure to serve a complaint after a
demand therefor has been served pursuant to CPLR 3012(b), a plaintiff
must demonstrate both a reasonable excuse for the delay in serving the
complaint and the existence of a meritorious cause of action (see Leibowitz v Glickman, 50 AD3d 643; Tutora v Schirripa, 1 AD3d 349, 350; Balgley v Cammarata, 299
AD2d 432). Here, the plaintiff failed to show the existence of a
meritorious cause of action. Accordingly, the Supreme Court did not
improvidently exercise its discretion in granting the defendant's
motion to dismiss the action.

The plaintiff's contention that the action was stayed pursuant
to CPLR 321(c) is raised for the first time on appeal and, thus, is not
properly before this Court (see Telmark, Inc. v Mills, 199 AD2d 579, 580; see also KPSD Mineola, Inc. v Jahn, 57 AD3d 853; Triantafillopoulos v Sala Corp., 39 AD3d 740).

Splinters, Inc. v Greenfield, 2009 NY Slip Op 04411 (App. Div., 2nd, 2009)

The Supreme Court improvidently exercised its discretion in denying the
branch of the defendants' motion which was to dismiss the 2005 action.
In order "[t]o avoid dismissal for failure to timely serve a complaint
after a demand for the complaint has been made pursuant to CPLR
3012(b), a plaintiff must demonstrate both a reasonable excuse for the
delay in serving the complaint and a meritorious cause [*3]of action" (Balgley v Cammarate, 299 AD2d 432; see Pristavec v Galligan, 32 AD3d 834; Maldonado v Suffolk County, 23 AD3d 353; Giordano v Vanchieri & Perrier, 16 AD3d 621; Tutora v Schirripa,
1 AD3d 349). The plaintiff offered no excuse for the failure to serve a
complaint during the approximately seven-month period from the demand
in February 2006 to October 2006, when it purportedly intended to serve
a complaint but failed to do so allegedly as a result of law-office
failure. Further, until an attorney of record withdraws or is changed
or discharged in the manner prescribed by CPLR 321, his or her
authority as attorney of record for his or her client continues, as to
adverse parties, unabated (see Moustakas v Bouloukos, 112 AD2d
981, 983). Thus, even if service of the complaint in October 2006 would
have been timely, the service would have been ineffective, since the
plaintiff's second attorney had not yet been substituted as counsel and
therefore had no authority to act for the plaintiff in that action (see
CPLR 321[b]). The 2005 action should therefore have been dismissed for
failure to respond properly and timely to the defendants' demand for a
complaint.

The bold is mine.