DMG – Page 29

Renewal record: efile

Leary v Bendow, 2018 NY Slip Op 03114 [1st Dept. 2018]

Although plaintiffs failed to include a copy of defendants' original motion to strike with the renewal motion, this did not violate CPLR 2214(c) because the original motion had been electronically filed and therefore was available to the parties and the court (see also Studio A Showroom, LLC v Yoon, 99 AD3d 632 [1st Dept 2012]). There is no evidence that the record was not sufficiently complete to allow the court to render a decision on the renewal motion and to exercise its discretion in considering any improperly submitted document (see Washington Realty Owners, LLC v 260 Wash. St. LLC, 105 AD3d 675 [1st Dept 2013]; Loeb v Tanenbaum, 124 AD2d 941, 942 [3d Dept 1986] ["under CPLR 2214(c), the court may refuse to consider improperly submitted" documents (emphasis added)]).

In any event, the court did not improvidently exercise its discretion in granting renewal (see CPLR 2221[e]). Unbeknownst to the court at the time it decided the original motion, the parties had entered a stipulation agreeing to adjourn the motion. Both parties concede the motion was accidentally submitted to the court in contravention of the stipulation. Thus, the equities of this matter, and the interests of justice, were properly served by permitting renewal, especially because denial would defeat substantial fairness (see Jorge v Conlon, 134 AD3d 480 [1st Dept 2015]; Scott v Brickhouse, 251 AD2d 397 [2d Dept 1998]; Metcalfe v City of New York, 223 AD2d 410, 411 [1st Dept 1996]). Finally, in denying defendants' motion to strike upon renewal, the court was permitted to take judicial notice of the so-ordered stipulations where both parties agreed that discovery had been completed (see Matter of Khatibi v Weill, 8 AD3d 485 [2d Dept 2004] ["this court may take judicial notice of undisputed court records and files"]; Jerome Prince, Richardson on Evidence § 2-209 at 45 [Farrell 11th ed 1995]).

Attorney fees

Matter of R.F. Lafferty & Co., Inc. v Winter, 2018 NY Slip Op 03489 [1st Dept. 2018]

Respondent also argues that the arbitration award should be vacated based on the doctrines of comity and res judicata. However, she waived these arguments by commencing the arbitration proceeding (see e.g. Bortman v Lucander, 150 AD3d 417 [1st Dept 2017]).

Respondent argues that the award of attorneys' fees to petitioner exceeded the arbitrator's power because the arbitration agreement did not expressly provide for attorneys' fees (see CPLR 7513; Kidder, Peabody & Co. v McArtor, 223 AD2d 502, 503 [1st Dept 1996]). However, both parties demanded attorneys' fees, and "mutual demands for counsel fees in an arbitration proceeding constitute, in effect, an agreement to submit the issue to arbitration, with the resultant award being valid and enforceable" (Matter of Goldberg v Thelen Reid Brown Raysman & Steiner LLP, 52 AD3d 392, 392-393 [1st Dept 2008], lv denied 11 NY3d 749 [2008]; see also [*2]Matter of Cantor Fitzgerald & Co. v Pritchard, 107 AD3d 476 [1st Dept 2013]).

4511(b)

Marshall v Fleming, 2018 NY Slip Op 03441 [1st Dept. 2018]

We take judicial notice of the subsequent decisions in the Australian action, the contents of which are undisputed (see CPLR 4511[b]; Matter of Kevin McK. v Elizabeth A.E., 111 AD3d 124, 133 [1st Dept 2013]). The decisions reflect that on August 24, 2017, the New South Wales Supreme Court (Payne, J.), issued a posttrial verdict in defendants' favor, dismissed the amended statement of claim, and directed plaintiffs to pay defendants' costs of the proceedings (see Marshall v Fleming [2017] NSWSC 1107). By order dated December 5, 2017, Justice Payne, inter alia, directed plaintiffs to pay defendants' costs of the trial, 50% of the costs of defendants' September 7, 2017 motion, and the costs of defendants' October 23, 2017 motion (see Marshall v Fleming, [No 2] [2017] NSWSC 1679).

Venue

Janis v Janson Supermarkets LLC, 2018 NY Slip Op 03333 [1st Dept. 2018]

Wakefern, a foreign corporation, submitted a copy of its application for authorization to conduct business filed with the Secretary of State, in which it identified New York County as "[t]he county within this state where its office is to be located" (Business Corporation Law § 1304[a][5]). Wakefern's designation of New York County in its application is controlling for venue purposes, even if it does not actually have an office in New York County (see Crucen v Pepsi-Cola Bottling Co. of N.Y., Inc., 139 AD3d 538 [1st Dept 2016]; Shetty v Volvo Cars of N. Am., LLC, 38 AD3d 202 [1st Dept 2007]; Job v Subaru Leasing Corp., 30 AD3d 159 [1st Dept 2006]; CPLR 503[c]).

Kochan v Target Corp., 2018 NY Slip Op 03445 [1st Dept. 2018]

Supreme Court did not improvidently exercise its discretion in granting Target's motion to change venue to Suffolk County even though plaintiff properly placed venue in New York County based upon Target's principal place of business at the time the action was commenced (see CPLR 503[a], [c]). The motor vehicle accident happened in Suffolk County, plaintiffs and codefendants live in that county, the decedent received her medical treatment there (see Lopez v Chaliwit, 268 AD2d 377 [1st Dept 2000]). Target also submitted the affidavits of two Suffolk County police officers, who averred that they were involved in the investigation including interviewing witnesses at the accident location and that they would be inconvenienced by having to travel to New York County because it would cause them to be absent from their police duties for a full day (see Kennedy v C.F. Galleria at White Plains, 2 AD3d 222, 223 [1st Dept 2003]).

That the police officers signed affidavits in favor of the motion to change venue establishes that they were aware of the action and demonstrates that they are willing to testify at trial. It was proper for the motion court to consider the police officers' convenience, because their testimony regarding their investigation as to how the accident happened bears on liability (see Hoogland v Transport Expressway, Inc., 24 AD3d 191 [1st Dept 2005]). Furthermore, the police officers' affidavits are not insufficient because they do not set forth their home addresses, since it is undisputed that they work in Suffolk County (see

Gorodetsky v Bridgewater Wholesalers, Inc., 2018 NY Slip Op 03122 [2d Dept. 2018]

Here, the defendants failed to disclose the addresses of all but one of the prospective witnesses, made only conclusory statements that the prospective witnesses would be inconvenienced, and failed to establish the manner or extent to which those witnesses would be inconvenienced (see Ambroise v United Parcel Serv. of Am. Inc., 143 AD3d at 928; Matter of Supplier Distribution Concepts, Inc., 80 AD3d 869, 871). With regard to those witnesses who were New York State police officers, while "the convenience of local government officials, such as police officers, is of paramount importance because they should not be kept from their duties unnecessarily" (Lafferty v Eklecco, LLC, 34 AD3d 754, 755), here, only conclusory statements, without any details, were provided as to how those witnesses would be inconvenienced. As such, these statements were insufficient to establish that those witnesses would be inconvenienced if venue were not changed.

An expert with no facts

Pascocello v Jibone, 2018 NY Slip Op 03466 [1st Dept. 2018]

An expert's opinion "must be based on facts in the record or personally known to the witness" (Hambsch v New York City Tr. Auth., 63 NY2d 723, 725 [1984] [internal quotation marks omitted]; see Roques v Noble, 73 AD3d 204, 206 [1st Dept 2010]), and in the absence of such record support, an expert's opinion is without probative force (see Diaz v New York Downtown Hosp., 99 NY2d 542, 544 [2002]). Here, Supreme Court properly precluded Dr. Toosi from offering an opinion based on photographs for which no proper foundation had been established.

3215(c) and reasonable excuse

Ibrahim v Nablus Sweets Corp., 2018 NY Slip Op 03515 [2d Dept. 2018]

The Supreme Court providently exercised its discretion in rejecting the plaintiff's excuse of law office failure and properly, in effect, directed dismissal of the complaint insofar as asserted against the defendants as abandoned pursuant to CPLR 3215(c). The plaintiff's excuse of law office failure did not rise to the level of a reasonable excuse, as it was vague, conclusory, and unsubstantiated (see U.S. Bank, N.A. v Dorvelus, 140 AD3d at 852; Baruch v Nassau County, 134 AD3d 658, 659; Mattera v Capric, 54 AD3d 827, 828). The excuse was contained in a brief paragraph in the supporting affirmation of an associate who stated, in sum and substance, that the attorney who commenced the action left the employ of the law firm of record, and the plaintiff's file was only discovered in May 2016 when the firm was relocating its offices. There was no affirmation from a principal of the law firm and no indication in the associate's affirmation that he had any personal knowledge of the purported law office failure or that he was even employed by the firm at the time it allegedly occurred. The one-year period to move for the entry of a default judgment lapsed in August 2015, and there is no indication that the attorney had left prior thereto. Since the plaintiff failed to demonstrate a reasonable excuse for her delay in moving for a default judgment, the Supreme Court providently exercised its discretion in denying that branch of the plaintiff's motion which was pursuant to CPLR 2004 for an extension of time to move for a default judgment (see T. Mina Supply, Inc. v Clemente Bros. Contr. Corp., 139 AD3d 1038).

Dont’ get cute in the reply

Lee v Law Offs. of Kim & Bae, P.C., 2018 NY Slip Op 03516 [2d Dept. 2018]

The function of reply papers is to address arguments made in opposition to the position taken by the movant and not to permit the movant to introduce new arguments in support of, or new grounds or evidence for, the motion (see USAA Fed. Sav. Bank v Calvin, 145 AD3d 704, 706; Allstate Flooring Distribs., L.P. v MD Floors LLC, 131 AD3d 834, 836; Mikulski v Battaglia, 112 AD3d 1355, 1356; Matter of Allstate Ins. Co. v Dawkins, 52 AD3d 826, 827; Dannasch v Bifulco, 184 AD2d 415, 415). Here, the plaintiff's reply papers included new arguments in support of the motion, new grounds and evidence for the motion, and expressly requested relief that was dramatically unlike the relief sought in her original motion (see USAA Fed. Sav. Bank v Calvin, 145 AD3d at 706; Carter v Johnson, 110 AD3d 656, 658). Therefore, those contentions, and the grounds and evidence in support of them, were not properly before the Supreme Court (see USAA Fed. Sav. Bank v Calvin, 145 AD3d at 706; Mikulski v Battaglia, 112 AD3d at 1356).

No cross-motion, no problem

Silvering v Sunrise Family Med., P.C., 2018 NY Slip Op 03556 [2d Dept. 2018]

To the extent the Supreme Court concluded that it lacked discretion to consider the plaintiffs' application pursuant to CPLR 306-b to extend their time to serve the defendant, which was not presented in a proper cross motion pursuant to CPLR 2215, we disagree. Although "a party seeking relief in connection with another party's motion is, as a general rule, required to do so by way of a cross motion," courts "retain discretion to entertain requests for affirmative relief that do not meet the requirements of CPLR 2215" (Fried v Jacob Holding, Inc., 110 AD3d 56, 64-65; see Smulczeski v Smulczeski, 128 AD3d 671, 672).

Forum Non Con requirments

Gorodetsky v Bridgewater Wholesalers, Inc., 2018 NY Slip Op 03122 [2d Dept. 2018]

A party moving for a change of venue pursuant to CPLR 510(3) has the burden of demonstrating that the convenience of material witnesses and the ends of justice will be promoted by the change (see CPLR 510[3]; Ambroise v United Parcel Serv. of Am., Inc., 143 AD3d 927, 928; Lapidus v 1050 Tenants Corp., 94 AD3d 950, 950). In doing so, the moving party must set forth (1) the names, addresses, and occupations of the prospective witnesses, (2) the facts to which the witnesses will testify at trial, so that the court may assess whether the proposed evidence is necessary and material, (3) a statement that the witnesses are willing to testify, and (4) a statement that the witnesses would be greatly inconvenienced if the venue of the action was not changed (see Ambroise v United Parcel Serv. of Am., Inc., 143 AD3d at 928; M.I. v Trinity-Pawling Sch., 125 AD3d 615, 615).

Here, the defendants failed to disclose the addresses of all but one of the prospective witnesses, made only conclusory statements that the prospective witnesses would be inconvenienced, and failed to establish the manner or extent to which those witnesses would be inconvenienced (see Ambroise v United Parcel Serv. of Am. Inc., 143 AD3d at 928; Matter of Supplier Distribution Concepts, Inc., 80 AD3d 869, 871). With regard to those witnesses who were New York State police officers, while "the convenience of local government officials, such as police officers, is of paramount importance because they should not be kept from their duties unnecessarily" (Lafferty v Eklecco, LLC, 34 AD3d 754, 755), here, only conclusory statements, without any details, were provided as to how those witnesses would be inconvenienced. As such, these statements were insufficient to establish that those witnesses would be inconvenienced if venue were not changed.

A party who is ignorant, in whole or in part, of the name or identity of a person who may properly be made a party, may proceed against such person as an unknown party by designating so much of his name and identity as is known. If the name or remainder of the name becomes known all subsequent proceedings shall be taken under the true name and all prior proceedings shall be deemed amended accordingly.

Markov v Stack's LLC (Delaware), 2018 NY Slip Op 03238 [1st Dept. 2018]

The motion court properly dismissed the complaint on the ground that it was served after the statutory limitations period had expired. Plaintiff's claims arose on January 14, 2008. The original complaint in this action, which was filed on January 6, 2014 (just days before the six-year statute of limitations expired), did not name Stack's LLC as a defendant, nor did it name defendant Stack's LLC (Delaware). The amended complaint, which for the first time named Stack's LLC (Delaware) as a defendant, was not filed until January 24, 2014 — more than a week after the statute had run. Plaintiff cannot properly rely on CPLR 1024 as a shield from the statute of limitations. Even assuming that the appellation "John Doe" referred to a corporation rather than a natural person, the complaint's description of the John Doe defendant was not described in such a way as to fairly apprise Stack's LLC (Delaware) that it was an intended defendant (see Bumpus v New York City Tr. Auth., 66 AD3d 26, 29—30 [2d Dept 2009]; see Tucker v Lorieo, 291 AD2d 261, 262 [1st Dept 2002]). Thus, the inadequate description rendered the action jurisdictionally defective (Thas v Dayrich Trading, Inc., 78 AD3d 1163, 1165 [2d Dept 2010]).

Author: DMG