Author: DMG

Amended complaint supercedes

Golia v Vieira, 2018 NY Slip Op 04537 [2d Dept 2018]

The original complaint in this action was superseded by an amended complaint (see Golia v Vieira, _____ AD3d _____ [Appellate Division Docket No. 2016-12969; decided herewith]). "The original complaint is no longer viable, inasmuch as the amended complaint takes the place of the original pleading'" (Taub v Schon, 148 AD3d 1200, 1201, quoting 100 Hudson Tenants Corp. v Laber, 98 AD2d 692, 692; see Pourquoi M.P.S., Inc. v Worldstar Intl., Ltd., 64 AD3d 551; Land v Merchants Despatch Transp. Co., 255 App Div 929, 929). Thus, the appeal and cross appeal from the order entered February 1, 2016, which determined the plaintiff's motion, inter alia, for leave to renew his opposition to the prior motion of the defendant Long Island College Hospital pursuant to CPLR 3211(a) to dismiss the original complaint insofar as asserted against it, has been rendered academic (see Chalasani v Neuman, 64 NY2d 879, 880; Mannino v Wells Fargo Home Mtge., Inc., 155 AD3d 860, 864; CRAFT EM CLO 2006-1, Ltd. v Deutsche Bank AG, 139 [*2]AD3d 638, 638-639; Pourquoi M.P.S., Inc. v Worldstar Intl., Ltd., 64 AD3d at 551-552; DePasquale v Estate of DePasquale, 44 AD3d 606, 607).

 

3216

Goetz v Public Serv. Truck Renting, Inc., 2018 NY Slip Op 04534 [2d Dept 2018]

"A court may not dismiss an action based on neglect to prosecute unless the statutory preconditions to dismissal, as articulated in CPLR 3216, are met" (Patel v MBG Dev., Inc., 41 AD3d 682, 682; see Baczkowski v Collins Constr. Co.,89 NY2d 499, 503). "Effective January 1, 2015, the Legislature amended, in several significant respects, the statutory preconditions to dismissal under CPLR 3216" (Rhodehouse v CVS Pharm., Inc., 151 AD3d 771, 772-773). One such precondition is that where a written demand to resume prosecution of the action is made by the court, as here, "the demand shall set forth the specific conduct constituting the neglect, which conduct shall demonstrate a general pattern of delay in proceeding with the litigation" (CPLR 3216[b][3]). Here, the compliance conference order did not set forth any specific conduct constituting neglect by the plaintiff. Accordingly, since one of the statutory preconditions to dismissal was not met, the court should not have directed dismissal of the complaint pursuant to CPLR 3216 (see Rhodehouse v CVS Pharm., Inc., 151 AD3d at 772-773).

CPLR 503(a)

Fensterman v Joseph, 2018 NY Slip Op 04532 [2d Dept 2018]

It is undisputed that, pursuant to CPLR 503(a), venue of the Ulster County Action is properly in Ulster County, where Bacci, one of the Ulster plaintiffs, resided at the time the action was commenced (see O'Brien v Vassar Bros. Hosp., 207 AD2d 169, 171). A motion to change venue on discretionary grounds, unlike motions made as of right, must be made in the county in which the action is pending, or in any county in that judicial district, or in any adjoining county (see CPLR 2212[a]; Minenko v Swinging Bridge Camp Grounds of N.Y., Inc., 155 AD3d 1413; Schwartz v Yellowbook, Inc., 118 AD3d 691, 692; Rubens v Fund, 23 AD3d 636, 637). The Fenstermen parties, therefore, were required to make a motion pursuant to CPLR 510(3) either in Ulster County, where the Ulster County Action was pending, in another county in the 3rd Judicial District, or in a county contiguous to Ulster County (see CPLR 2212[a]; Minenko v Swinging Bridge Camp Grounds of N.Y., Inc., 155 AD3d 1413; Schwartz v Yellowbook, Inc., 118 AD3d at 692; Rubens v Fund, 23 AD3d at 637). Since Ulster County and Nassau County are not contiguous, and Nassau County is not in the 3rd Judicial District, the Fensterman parties' motion to change venue pursuant to CPLR 510(3) based on discretionary grounds was improperly made in the Supreme Court, Nassau County (see Minenko v Swinging Bridge Camp Grounds of N.Y., Inc., 155 AD3d 1413; Schwartz v Yellowbook, Inc., 118 AD3d at 692; Rubens v Fund, 23 AD3d at 637-638). Although not argued by the parties in the Supreme Court, Nassau County, but argued on appeal, we reach this issue in the exercise of our discretion because it appears on the face of the record and could not have been avoided or explained if raised in the Supreme Court (see Rubens v Fund, 23 AD3d at 638; see also Coscia v Jamal, 156 AD3d 861).

The parties' remaining contentions need not be reached in light of our determination.

Accordingly, the Supreme Court, Nassau County, should have denied the plaintiffs' motion pursuant to CPLR 510(3) to change venue of the Ulster County Action to Nassau County for the convenience of witnesses, with leave to renew in the Supreme Court, Ulster County.

Bold is mine.

Patiwana v Shah, 2018 NY Slip Op 04746 [2d Dept. 2018]

CPLR 503(a) provides, in pertinent part, "except where otherwise prescribed by law, the place of trial shall be in the county in which one of the parties resided when it was commenced." Here, since the plaintiff and the defendants, the only parties to this derivative action (see Niles v New York Cent. & Hudson Riv. R. R. Co., 176 NY 119, 124; Flynn v Brooklyn City R. R. Co., 158 NY 493, 508; Jones v Van Heusen Charles Co., 230 App Div 694, 697; cf. Jacobs v Cartalemi, 156 AD3d 605; Barbaro v Spinelli, 121 AD3d 727, 728), were residents of Nassau County when it was commenced, venue was improperly placed in Queens County. Contrary to the plaintiff's contention, the fact that two of the corporations and the LLC are located in Queens County did not make Queens County a proper venue to commence this action, since those entities are not parties to the action.

Furthermore, venue could not have been properly placed in Queens County pursuant to CPLR 507. While CPLR 507 mandates that venue of an action which seeks a judgment that will "affect the title to, or the possession, use or enjoyment of, real property" shall be placed in the county where the property is located (see Clark v Clark, 93 AD3d 812, 816), here, the action seeks, inter alia, a determination of the plaintiff's membership interest in the LLC (see Fish v Davis, 146 AD3d 485, 486; Rubinstein v Bullard, 285 AD2d 366, 367; Suddin v Lynbrook Gardens Co., 127 Misc 2d 406, 409 [Sup Ct, Special Term, NY County]). In opposition to the motion, the plaintiff failed to demonstrate that the relief he is seeking will affect real property in Queens County.

The plaintiff failed to move by notice of cross motion to retain venue in Queens County pursuant to CPLR 510(3), and we decline to review the plaintiff's informal request in the exercise of discretion (see CPLR 2215; Fried v Jacob Holding, Inc., 110 AD3d 56, 64, 65).

3215(g)(1)

Citimortgage, Inc. v Reese, 2018 NY Slip Op 04527 [2d Dept 2018]

Contrary to the plaintiff's contention, the issue of its failure to comply with CPLR 3215(g)(1) may be raised for the first time on appeal (see Editorial Photocolor Archives v Granger Collection, 61 NY2d 517, 523; VNB N.Y., LLC v Y.M. Intercontinental Gem Corp., 154 AD3d 903, 906). The failure to give a party proper notice of a motion deprives the court of jurisdiction to entertain the motion and renders the resulting order void (see Wells Fargo Bank, N.A. v Whitelock, 154 AD3d 906, 907; Paulus v Christopher Vacirca, Inc., 128 AD3d 116, 117).

3126

Chowdhury v Hudson Val. Limousine Serv., LLC, 2018 NY Slip Op 04526 [2d Dept 2018]

"The nature and degree of a penalty to be imposed under CPLR 3126 for discovery violations is addressed to the court's discretion" (Crupi v Rashid, 157 AD3d 858, 859; see Dimoulas v Roca, 120 AD3d 1293, 1295; Arpino v F.J.F. & Sons Elec., Co., Inc., 102 AD3d 201, 210; Zakhidov v Boulevard Tenants Corp., 96 AD3d 737, 738). "The general rule is that the court will impose a sanction commensurate with the particular disobedience it is designed to punish and go no further than that" (Crupi v Rashid, 157 AD3d at 859; see Zakhidov v Boulevard Tenants Corp., 96 AD3d at 739; Patrick M. Connors, Practice Commentaries, McKinney's Cons Laws of NY, Book 7B, C3126:8). This Court is vested with corresponding power to substitute its own discretion for that of the motion court, even in the absence of abuse (see Those Certain Underwriters at Lloyds, London v Occidental Gems, Inc., 11 NY3d 843, 845; Household Fin. Realty Corp. of NY v Cioppa, 153 AD3d 908, 910; Lewis v John, 87 AD3d 564, 565).

In light of Koonin's failure to comply with multiple court orders and so-ordered stipulations directing him to appear for the EBT, the Supreme Court properly concluded that Koonin engaged in willful and contumacious conduct (see Riccuiti v Consumer Prod. Servs., LLC, 71 AD3d 754; Carabello v Luna, 49 AD3d 679, 680). However, under the circumstances, it was an improvident exercise of discretion to grant those branches of the motion and cross motion which were to strike Koonin's answer in light of the fact that the court also granted those branches of the motion and cross motion which were to preclude Koonin from offering any evidence at the time of trial (see e.g. Hasan v 18-24 Luquer St. Realty, LLC, 144 AD3d 631, 633; Piatek v Oak Dr. Enters., Inc., 129 AD3d 811, 812).

Cannon v 111 Fulton St. Condominium, Inc., 2018 NY Slip Op 04523 [2d Dept 2018]

Here, the so-ordered stipulation did not set a time, date, or place for the plaintiff's deposition, instead stating merely that the plaintiff's deposition was to be held "on or before" March 16, 2015, "at a time and location to be agreed upon." In light of this, the defendants' minimal assertion that the plaintiff failed to appear, which relied on the hearsay assertion of an unnamed employee of defense counsel, was insufficient to demonstrate that the plaintiff willfully and contumaciously violated the so-ordered stipulation (see Yong Soon Oh v Hua Jin, 124 AD3d 639, 641; Deer Park Assoc. v Town of Babylon, 121 AD3d at 740; Vaccaro v Weinstein, 117 AD3d 1033, 1034; Orgel v Stewart Tit. Ins. Co., 91 AD3d 922, 923). Similarly, the defendants did not allege in [*3]their motion that the plaintiff had failed to provide the outstanding written discovery that was included in the so-ordered stipulation. Therefore, since the defendants failed to demonstrate that the plaintiff knew when and where to appear for her deposition, there was no evidence of ongoing willful or contumacious conduct (see PNC Bank, N.A. v Campbell, 142 AD3d 1148, 1149). Accordingly, we disagree with the Supreme Court's determination to grant that branch of the defendant's motion which was to preclude the plaintiff from offering evidence at trial.

Videos and Experts

Torres v Hickman, 2018 NY Slip Op 04372 [2d Dept 2018]

Contrary to the plaintiff's contention, the Supreme Court providently exercised its discretion in precluding the proffered surveillance video excerpt. "Testimony from [a] videographer that he [or she] took the video, that it correctly reflects what he [or she] saw, and that it has not been altered or edited is normally sufficient to authenticate a videotape" (Zegarelli v Hughes, 3 NY3d 64, 69). Where the videographer is not called as a witness, the video can still be authenticated with testimony that the video "truly and accurately represents what was before the camera" (People v Byrnes, 33 NY2d 343, 349; see Zegarelli v Hughes, 3 NY3d at 69). Furthermore, "[e]vidence establishing the chain of custody of the videotape may additionally buttress its authenticity and integrity, and even allow for acceptable inferences of reasonable accuracy and freedom from tampering" (People v Patterson, 93 NY2d 80, 84; see Read v Ellenville Natl. Bank, 20 AD3d 408, 409). Here, given the inability of the witness to testify regarding the editing of the master recording and the accuracy of the video excerpt, and his lack of personal knowledge as to the creation of the proffered disc and how it came into the possession of the plaintiff's attorneys, we agree with the court's determination that the plaintiff failed to properly authenticate the video excerpt (see Read v Ellenville Natl. Bank, 20 AD3d at 409-410).

Additionally, the Supreme Court providently exercised its discretion in precluding the plaintiff's orthopedic surgeon from testifying that the accident imparted "tremendous energy" to the plaintiff's vehicle, since the witness was not a biomechanical engineer, and since he failed to quantify the amount of energy involved (see Plate v Palisade Film Delivery Corp., 39 AD3d 835, 837).

The plaintiff's contention that she was entitled to a missing witness charge is unpreserved for appellate review (see CPLR 4110-b).

Abandoned: 22 NYCRR 202.48

JP Morgan Chase Bank, N.A. v Atedgi, 2018 NY Slip Op 04315 [2d Dept 2018]

In April 2013, the plaintiff moved, inter alia, for summary judgment on the complaint and for an order of reference. The appellants opposed the motion. By decision dated July 1, 2013, the Supreme Court granted the motion and directed the plaintiff to "settle order." The decision was filed with the Queens County Clerk on July 9, 2013. Atedgi subsequently sought to have the plaintiff's motion deemed abandoned pursuant to 22 NYCRR 202.48(b) on the ground that the plaintiff failed to submit its proposed order for signature within 60 days after the July 1, 2013, decision was filed, as required by 22 NYCRR 202.48(a). The court rejected Atedgi's request. Thereafter, the plaintiff submitted its proposed order, and the court signed it on September 15, 2015. This appeal is from so much of the order dated September 15, 2015, as granted those branches of the plaintiff's motion which were for summary judgment on the complaint insofar as asserted against the appellants and for an order of reference.

***

Contrary to the appellants' contention, under the circumstances of this case the Supreme Court providently exercised its discretion in declining to deem the plaintiff's motion abandoned pursuant to 22 NYCRR 202.48 (see Curanovic v Cordone, 134 AD3d 978, 979-980; Russo v City of New York, 206 AD2d 355).

Translator’s affidavit: CPLR 2101(b)

Gonzalez v Abreu, 2018 NY Slip Op 04309 [2d Dept 2018]

To establish prima facie entitlement to judgment as a matter of law, a movant for summary judgment must come forward with evidentiary proof, in admissible form, demonstrating the absence of any triable issues of fact (see Alvarez v Prospect Hosp., 68 NY2d 320; Zuckerman v City of New York, 49 NY2d 557). The failure to make such showing requires denial of the motion, regardless of the sufficiency of the opposing papers (see Winegrad v New York Univ. Med. Ctr., 64 NY2d 851). Here, the defendant testified at her deposition through a Spanish language interpreter. However, the errata sheets annexed to the transcript of the defendant's deposition testimony and the defendant's affidavit, which were both written in English, were not accompanied by a translator's affidavit executed in compliance with CPLR 2101(b). Therefore, those evidentiary submissions were facially defective and inadmissible (see Al-Mamar v Terrones, 146 AD3d 737, 739; Saavedra v 64 Annfield Ct. Corp., 137 AD3d 771, 772; Tepeu v Nabrizny, 129 AD3d 935, 937; Reyes v Arco Wentworth Mgt. Corp., 83 AD3d 47, 54). While the defendant submitted a translator's affidavit with her reply papers, that affidavit was unnotarized, and thus was not in admissible form (see Al-Mamar v Terrones, 146 AD3d 737, 739). 

 

Bold is mine.

Preliminary injunction converted to summary judgment

Carroll v Dicker, 2018 NY Slip Op 04305 [2d Dept. 2018]

A motion for a preliminary injunction "opens the record and gives the court authority to pass upon the sufficiency of the underlying pleading" (Guggenheimer v Ginzburg, 43 NY2d 268, 272). "However, the inquiry is limited to whether the plaintiff has a cause of action, and the court's power does not extend to an evaluation of conflicting evidence" (Livas v Mitzner, 303 AD2d 381, 382; see Alexandre v Duvivier, 96 AD3d 788, 789; Masjid Usman, Inc. v Beech 140, LLC, 68 AD3d 942, 942; Ugiri Progressive Community, Inc. v Ukwuozo, 57 AD3d 656, 656-657; Cellular Tel. Co. v Village of Tarrytown, 210 AD2d 196, 197). "Accordingly, the motion court may not, on its own initiative, convert a motion for a preliminary injunction into one for summary judgment without giving adequate notice to the parties and affording them an opportunity to lay bare their proof" (Grand Aerie of Fraternal Order of Eagles v Mostrando, 94 AD3d 1050, 1052; see Hoeffner v John F. Frank, Inc., 302 AD2d 428, 430).

Here, the plaintiffs correctly contend that the Supreme Court, in effect, improperly converted their motion for a preliminary injunction into one for summary judgment without notifying the parties of its intent to do so (see Grand Aerie of Fraternal Order of Eagles v Mostrando, 94 AD3d at 1052). Consequently, the court's determination "was procedurally premature, and it erred in adjudicating the rights of the parties with regard to issues beyond those related to the requested preliminary injunction" (Alexandre v Duvivier, 96 AD3d at 789-790).

Summary judgment

Poon v Nisanov, 2018 NY Slip Op 04365 [2d Dept 2018]

With certain limitations not applicable here, "[a]ny party may move for summary judgment in any action" (CPLR 3212[a]). "A motion for summary judgment shall be supported by affidavit, by a copy of the pleadings and by other available proof, such as depositions and written admissions" (CPLR 3212[b]). The moving party's submissions must show "that there is no defense to the cause of action or that the cause of action or defense has no merit" (id.). A motion for summary judgment "shall be granted if, upon all the papers and proof submitted, the cause of action or defense shall be established sufficiently to warrant the court as a matter of law in directing judgment in favor of any party" (id.; see Alvarez v Prospect Hosp., 68 NY2d 320, 324).

A plaintiff moving for summary judgment on a cause of action asserted in a complaint generally has the burden of establishing, prima facie, "all of the essential elements of the cause of action" (Nunez v Chase Manhattan Bank, 155 AD3d 641, 643; see Stukas v Streiter, 83 AD3d 18, 23). By contrast, a defendant moving for summary judgment dismissing one of the plaintiff's causes of action may generally sustain his or her prima facie burden "by negating a single essential element" of that cause of action (Nunez v Chase Manhattan Bank, 155 AD3d at 643). To defeat summary judgment, the nonmoving party need only rebut the prima facie showing made by the moving party so as to demonstrate the existence of a triable issue of fact (see Alvarez v Prospect Hosp., 68 NY2d at 324; Stukas v Streiter, 83 AD3d at 23-24).

Beard v Chase, 2018 NY Slip Op 04636 [1st Dept 2018] 

Plaintiffs were not required, as movants, to disprove any possible defenses defendants might assert in opposition to their motion, such as partial performance (see C.H. Sanders Constr. Co. v Bankers Tr. Co., 123 AD2d 251, 252 [1st Dept 1986]).

There was a dissent.