Author: DMG

CPLR R. 3212 Hearsay

CPLR R. 3212 Motion for summary judgment

Lucas v Fulton Realty Partners, LLC, 2009 NY Slip Op 02567 (App. Div., 2nd, 2009)

The appellant's submission of unsworn workers' compensation forms,
completed by persons with no apparent firsthand information of how the
accident occurred, was insufficient to raise a triable issue of fact
with respect to the issue of causation (see Toussaint v Ferrara Bros. Cement Mixer, 33 AD3d 991, 992; Hanly v Quaker Chem. Co., Inc., 29 AD3d 860, 861; Bates v Yasin, 13 AD3d 474; Reed v New York City Tr. Auth., 299 AD2d 330, 332; Morissaint v Raemar Corp., 271 AD2d 586, 587; Daliendo v Johnson,
147 AD2d 312, 321). Accordingly, since there were no triable issues of
fact, summary judgment was properly awarded to the plaintiffs against
the appellant on the issue of liability on the Labor Law § 240(1)
causes of action.

CPLR § 3104(a); § 4001; R. 4212; § 4317

CPLR § 3104 Supervision of disclosure

CPLR § 4001 Powers of referees

CPLR R. 4212 Advisory jury; referee to report

CPLR § 4317 When reference to determine may be used

Llorente v City of New York, 2009 NY Slip Op 02566 (App. Div., 2nd, 2009)

Although a court lacks the authority to sua sponte appoint a private
attorney to serve as a Referee to oversee discovery, and to be
compensated by the parties without their consent (see Surgical Design Corp. v Correa, 309 AD2d 800; Warycha v County of Westchester, 273
AD2d 434), here the Supreme Court did not refer the in camera review of
over 4,000 documents to a named private attorney, but rather to a Court
Attorney Referee pursuant to CPLR 3104(a). Therefore, consent of the
parties was not required.

Contrary to the plaintiffs' contention, the order dated
December 20, 2007, did not direct the Court Attorney Referee to "hear
and determine" the motions of the defendants City of New York,
Administration for Children's Services, and Little Flower Children's
Services (hereinafter the defendants) for protective orders. The order
expressly limited the Court Attorney Referee to "hear and report on whether or to what extent [the] defendants' motions for protective orders should be granted" (emphasis added) (see CPLR 4001; compare CPLR 4212, 4317). Accordingly, the Supreme Court's appointment of a Court Attorney Referee to oversee discovery was within its authority and was not an improvident exercise of discretion.


CPLR R. 3211(a)(5) General Release

CPLR R. 3211 Motion to dismiss

(a)(5) the
cause of action may not be maintained because of arbitration and award,
collateral estoppel, discharge in bankruptcy, infancy or other
disability of the moving party, payment, release, res judicata, statute
of limitations, or statute of frauds


Lipiner v Santoli, 2009 NY Slip Op 02565 (App. Div., 2nd, 2009)

Counsel for the parties then entered into a stipulation allowing
Santoli to amend her answer to assert a counterclaim against Edward
Lipiner, and she thereafter asserted a counterclaim against Edward
Lipiner for contribution and indemnification. However, Edward Lipiner
then moved to dismiss the counterclaim and the third-party complaint
pursuant to CPLR 3211(a)(5) as barred by the general release. The
Supreme Court denied the motion without an explanation. We reverse.

The general release executed by Santoli is neither vague nor
ambiguous, and it releases Edward Lipiner from "all actions, causes of
action, suits . . . damages, judgments . . . . whatsoever from the
beginning of the world to the day of the date of this Release." It is
also undisputed that Santoli was represented by counsel at the time of
the release and that she "willingly" executed the release. Moreover, at
the time of the execution of the release, this action had been
commenced and the third-party complaint, which also sought contribution
and indemnification, had been interposed.

Under these facts and circumstances, Santoli's unsubstantiated
allegation that she did not intend the release to bar her
contribution/indemnification claim against Edward Lipiner was
insufficient to defeat the motion to dismiss (see General Obligations Law § 15-108[a], [c]; Barry v Hildreth, 9 AD3d 341; Touloumis v Chalem, 156 AD2d 230; see also McNally v Corwin, 30 AD3d 482; cf., Tarantola v Williams, 48 AD2d 552).

Foundation

Kydd v Daarta Realty Corp., 2009 NY Slip Op 02563 (App. Div., 2nd, 2009)

Although the neuropsychologist's affidavit indicated that he had
reviewed records relating to the infant plaintiff's medical history in
forming his opinion, he failed to identify any of these records. Thus,
there was no evidentiary foundation for his conclusion that the infant [*2]plaintiff's
"pervasive developmental delay (autism) developed long prior to his
history of elevated lead levels." The neuropsychologist also failed to
discuss the levels of lead in the infant plaintiff's blood, or to
explain why the levels of lead the child was exposed to could not have
caused and/or exacerbated his alleged delay and cognitive deficits.
Furthermore, the neuropsychologist's affidavit did not indicate the
training and experience he had in diagnosing lead-poisoning injuries in
children. Under these circumstances, the neuropsychologist's conclusory
opinion that the infant plaintiff's developmental disorder was not in
any way related to his history of elevated blood lead levels was
insufficient to make a prima facie showing of Daarta's entitlement to
judgment as a matter of law (see Baez v Sugrue, 300 AD2d 519, 520-521; Wynn v T.R.I.P. Redevelopment Assoc., 296 AD2d 176, 184; Walton v Albany Community Dev. Agency, 279 AD2d 93; see also Juarez v Wavecrest Mgt. Team, 88 NY2d 628).

CPLR R. 3211(a)(7)

CPLR R. 3211 Motion to dismiss

CPLR R. 3211(a)(7)

Hauff v Listemann, 2009 NY Slip Op 02561(App. Div., 2nd, 2009)

On a motion to dismiss pursuant to CPLR 3211(a)(7), the complaint must
be afforded a liberal construction, the facts therein must be accepted
as true, and the plaintiff must be accorded the benefit of every
favorable inference (see Leon v Martinez, 84 NY2d 83, 87-88).
The court's function on such a motion is only to determine whether the
facts as alleged fit within any cognizable legal theory (see Leon v Martinez, 84 NY2d at 87-88).

CPLR R. 2106

CPLR R. 2106

Fung v Uddin, 2009 NY Slip Op 02560 (App. Div., 2nd, 2009)

Furthermore, the affirmation of the plaintiff's
former treating physician, Jeffrey Schwartz, was without probative
value because he was no longer licensed to practice medicine at the
time the affirmation was written (see CPLR 2106; Worthy v Good Samaritan Hosp. Med. Ctr., 50 AD3d 1023, 1024; McDermott v New York Hosp.-Cornell Med. Ctr., 42 AD3d 346).

CPLR R. 4518

CPLR R. 4518 Business records

Cheul Soo Kang v Violante, 2009 NY Slip Op 02558 (App. Div., 2nd, 2009)

The trial court erred in admitting a police accident report into
evidence. The report did not qualify for admission pursuant to CPLR
4518(c) because it was not certified, and no foundation testimony
establishing its authenticity and accuracy was offered (see DeLisa v Pettinato, 189 AD2d 988; Matter of Peerless Ins. Co. v Milloul,
140 AD2d 346). Furthermore, the statements in the report attributed to
the plaintiff and defendant driver constituted inadmissable hearsay (see Carr v Burnwell Gas of Newark, Inc., 23 AD3d 998, 1000; Hatton v Gassler, 219 AD2d 697). The error cannot be considered harmless.

CPLR § 308 (2)

CPLR § 308 Personal service upon a natural person

Beneficial Homeowner Serv. Corp. v Girault, 2009 NY Slip Op 02552 (App. Div., 2nd, 2009)

The motion of the defendant Poucher Girault (hereinafter the
defendant) to vacate the final judgment of foreclosure and sale was
properly denied without a hearing. The affidavit of the process server
constituted prima facie evidence of proper service pursuant to CPLR
308(2) (see Hamlet on Olde Oyster Bay Homeowners Assn., Inc. v Ellner, 57 AD3d 732; Wells Fargo Bank, N.A. v McGloster, 48 AD3d 457; Bankers Trust Co. of Cal. v Tsoukas, 303
AD2d 343, 343-344), and the defendant's bare and unsubstantiated denial
of receipt was insufficient to rebut the presumption of proper service
created by the affidavit of service (see 425 E. 26th St. Owners Corp. v Beaton, 50 AD3d 845, 846; Rosario v Beverly Rd. Realty Co., 38 AD3d 875; Chemical Bank v Darnley, 300 AD2d 613; Simmons First Natl. Bank v Mandracchia, 248
AD2d 375). "A court need not conduct a hearing to determine the
validity of the service of process where the defendant fails to raise
an issue of fact regarding service" (Hamlet on Olde Oyster Bay Homeowners Assn., Inc. v Ellner, 57 AD3d at 733).

Furthermore, the defendant failed to establish that he was
entitled to vacatur of the final judgment of foreclosure and sale
pursuant to CPLR 317 as the record is devoid of any evidence tending to
show a meritorious defense (see Green Point Sav. Bank v 794 Utica Ave. Realty Corp., [*2]242 AD2d 602, 602-603; Halali v Gabbay, 223 AD2d 623, 623-624).

CPLR § 214-a Relation Back

CPLR § 214-a Action for medical, dental or podiatric malpractice to be commenced within two years and six months; exceptions

Alvarado v Beth Israel Med. Ctr., 2009 NY Slip Op 02550 (App. Div., 2nd, 2009)

In order for a claim asserted against a new defendant to relate back
to the date a claim was asserted against another defendant, the
plaintiff must establish that (1) both claims arose out of the same
conduct, transaction, or occurrence, (2) the new party is united in
interest with the original defendant, and by reason of that
relationship, can be charged with notice of the institution of the
action and will not be prejudiced in maintaining his or her defense on
the merits by virtue of the delayed, and otherwise stale, assertion of
those claims against him or her, and (3) the new party knew or should
have known that, but for a mistake by the plaintiff as to the identity
of the proper parties, the action would have been timely commenced
against him or her as well (see Buran v Coupal, 87 NY2d 173, 178; Schiavone v Victory Mem. Hosp., 292 AD2d 365, 365-366; Austin v Interfaith Med. Ctr., 264
AD2d at 703). The "linchpin" of the relation-back doctrine is whether
the new defendant had notice within the applicable limitations period (see Buran v Coupal, 87 NY2d at 180; Shapiro v Good Samaritan Regional Hosp. Med. Ctr., 42 AD3d 443, 444).

Here, the plaintiffs failed to present evidence sufficient to
satisfy the third prong of the relation-back doctrine test. There is no
evidence in the record that Cohen had notice of the pending action
before being subpoenaed to give a deposition as a nonparty witness,
approximately seven years after he allegedly committed the malpractice (see Buran v Coupal, 87 NY2d at 180; Shapiro v Good Samaritan Regional Hosp. Med. Ctr., 42
AD3d at 444). Cohen could have reasonably concluded that the
plaintiffs' failure to sue him within the applicable limitations period
meant that there they had no intent to sue him, and thus, that the
matter had been laid to rest (see Buran v [*3]Coupal, 87 NY2d at 181; Shapiro v Good Samaritan Regional Hosp. Med. Ctr., 42 AD3d at 444; see also Spaulding v Mount Vernon Hosp., 283 AD2d 634, 634-635).

CPLR § 4213 (b)

CPLR § 4213 Decision of the court

(b) Form of decision

Tulley v Nemet Motor, Inc., 2009 NYSlipOp 50526(U) (App. Term.,1st, 2009)

The trial court failed to comply with the specificity requirements of
CPLR 4213(b) in rendering judgment in plaintiff's favor without setting
forth its rationale or the facts essential to its determination.
Inasmuch as this case hinges in large measure upon issues of
credibility, and since it is unclear whether the trial court applied
the proper statutory burdens of proof (see General Business Law § 198-b); Jandreau v LaVigne, 170 AD2d 861 [1991]), a remand for a new trial is the appropriate remedy (see Weckstein v Breitbart, 111 AD2d 6 [1985]).