Author: DMG

3212(a)

3212(a)

Quinones v Joan & Sanford I. Weill Med. Coll., 2014 NY Slip Op 00882 [1st Dept. 2014]

While acknowledging that an extension would be warranted by an attorney's illness, a death in the family, or a computer breakdown caused by Hurricane Sandy, the court saw no justification for granting an extension in this case. The court's view was that the excuse offered was a perfunctory claim of law office failure, and did not rise to the level of good cause.

In seeking to reverse the appealed order, defendant claims that CPLR 3212(a) requires a showing of good cause for a late summary judgment motion only when the motion is made more than 120 days after the filing of the note of issue. When a party fails to comply with a court-imposed deadline of less than 120 days, defendant argues, the operative statutory provision is CPLR 2004, under which "law office failure" may be considered a factor supporting a finding of good cause. Defendant further contends that, even under CPLR 3212(a), it has demonstrated good cause for its failure to move within the court-imposed time limit.

It is uncontroverted that defendant's motion was not timely under the schedule set by the preliminary conference order dated January 5, 2011. As the Court of Appeals has repeatedly reiterated, court-ordered time frames are requirements to be taken seriously by the parties (see Gibbs v St. Barnabas Hosp., 16 NY3d 74, 81 [2010]; Miceli v State Farm Mut. Auto. Ins. Co., 3 NY3d 725 [2004]; Brill v City of New York, 2 NY3d 648, 652 [2004]). Contrary to the distinction defendant seeks to draw, it does not matter whether a motion for summary judgment has been made more than 120 days after the filing of the note of issue or after the expiration of a shorter time limit set by a court order or stipulation. Whatever the source of the deadline with which a party fails to comply, the lateness may not be excused without a showing of good cause within the meaning of CPLR 3212(a) — a showing of something more than mere law office failure (see Polanco v Creston Ave. Props., Inc., 84 AD3d 1337, 1341 [2d Dept 2011]; Powell v Kasper, 84 AD3d 915, 917 [2d Dept 2011]; Deberry-Hall v County of Nassau, 88 AD3d 634, 635 [2d Dept 2011]; Fine v One Bryant Park, LLC, 84 AD3d 436 [1st Dept 2011]; Riccardi v CVS Pharmacy, Inc., 60 AD3d 838 [2d Dept 2009]; Giudice v Green 292 Madison, LLC, 50 AD3d 506 [1st Dept 2008]; Glasser Abramovitz, 37 AD3d 194 [1st Dept 2007]). Since the excuse proffered by defendant — that its counsel inadvertently overlooked the date set in the January 5, 2011 preliminary conference order — is a perfunctory claim of law office failure, the motion court providently exercised its discretion in denying defendant's motion.

Emphasis mine.

Personal knowledge

Chekowsky v Windemere Owners, LLC, 2014 NY Slip Op 01139 [1st Dept. 2014]

While defendants' employee's affidavit in opposition stated that more than $55,000 had been spent on the improvements, the employee was not a person with knowledge of the facts, and her statement was unsupported by any admissible evidence, such as affidavits by the various vendors she claimed would testify to additional improvements at trial, and devoid of an explanation of why they are not now available (see Castro v New York Univ., 5 AD3d 135 [1st Dept 2004]; CPLR 3212[b]).

Defendants failed to show that they needed further discovery, especially since they are not [*2]seeking any records from plaintiff, and they had 17 months to search their own records (see Bailey v New York City Tr. Auth., 270 AD2d 156 [1st Dept 2000]; CPLR 3212[f]).

Emphasis mine

CPLR 3025 mere fact of exposure to greater liability not prejudicial

CPLR 3025

87 Chambers, LLC v 77 Reade, LLC, 2014 NY Slip Op 01123 [1st Dept. 2014]

Appellants' motion was timely filed and respondents have not shown that they would be prejudiced by granting appellants' leave to assert the new claims. Among other things, appellants are not prejudiced by the mere fact of exposure to potentially greater liability in the form of punitive damages (see Loomis v Civetta Corinno Constr. Corp., 54 NY2d 18, 23 [1981]; Letterman v Reddington, 278 AD2d 868 [4th Dept 2000]).

Personal Jurisdiction waived

CPLR 3211(e)
CPLR 320

Deutsche Bank Natl. Trust Co. v Ned, 2014 NY Slip Op 01122 [1st Dept. 2014]

In this mortgage foreclosure action, the motion court properly denied defendant's motion to dismiss the complaint on the ground of lack of jurisdiction. Defendant waived the defense of lack of personal jurisdiction since she failed to assert it in her answer and in the two prior motions she made (see CPLR 320; Ohio Sav. Bank v Munsey, 34 AD3d 659 [2d Dept 2006]). Although defendant is correct that the evidence of her physical description rebuts the presumption of proper service since it does not match the description provided by the process server, the court was not required to direct a traverse hearing since defendant waived this defense prior to alerting the court to the discrepancies.

Emphasis mine.

unqualified expert and not disqualified expert

Von Ohlen v East Meadow Union Free Sch. Dist., 2014 NY Slip Op 00652 [2nd Dept. 2014]

While the plaintiffs submitted the affidavit and report of their purported expert, there was no showing that the purported expert had any specialized knowledge, experience, training, or education regarding playground equipment so as to qualify him to render an opinion in this area (see Y.H. v Town of Ossining, 99 AD3d 760, 762). Furthermore, the expert's opinions were speculative and conclusory (see Rivas-Chirino v Wildlife Conservation Socy., 64 AD3d 556, 558). Additionally, the plaintiffs' reliance on the handbook of the United States Consumer Product Safety Commission was inadequate to raise a triable issue of fact as to the School District's negligence, since the standards promulgated by that agency are not mandatory but, rather, are merely suggested guidelines (see Miller v Kings Park Cent. School Dist., 54 AD3d 314, 315; Soldano v Bayport-Blue Point Union Free School Dist., 29 AD3d 891; Pinzon v City of New York, 197 AD2d 680, 681).

Winzelberg v 1319 50th St. Realty Corp., 2014 NY Slip Op 00656 [2nd Dept. 2014]

The appellants failed to establish a sufficient basis for disqualifying the plaintiff's expert witness. The record demonstrated that the expert was originally and continuously retained on the plaintiff's behalf, such that no confidential relationship existed between the plaintiff's expert and any defendants in this action (see Roundpoint v V.N.A., Inc., 207 AD2d 123; see generally Berkowitz v Berkowitz, 176 AD2d 775; cf. Mancheski v Gabelli Group Capital Partners, Inc., 22 AD3d 532, 534; Matter of Walden Fed. Sav. & Loan Assn. v Village of Walden, 212 AD2d 718, 719). No other basis for finding a conflict of interest was presented. Accordingly, the appellants' motion to disqualify the plaintiff's expert witness was properly denied.

Repudiation of coverage

See also State Farm Ins. Co. v. Domotor, 266 AD2d 219 [2nd Dept. 1999] 

Matter of Kane v Fiduciary Ins. Co. of Am., 2014 NY Slip Op 00593 [1st Dept.]

The arbitral awards, rendered in compulsory arbitration, were not irrational or contrary to settled, and therefore should have been confirmed. Respondent insurer's disclaimer, based strictly upon primacy of coverage, was not so absolute or unequivocal as to constitute a repudiation of the policy (see Seward Park Hous. Corp. v Greater N.Y. Mut. Ins. Co., 43 AD3d 23, 30 [1st Dept 2007]). The arbitrators were therefore correct that petitioner was required, but failed, to comply with the conditions precedent to coverage found in the implementing no-fault regulations. He did not submit timely written proof of claim to the insurer, including the particulars regarding the nature and extent of the injuries and treatment received and contemplated (11 NYCRR 65-1.1, 65-24[c]).

Emphasis mine.

Was this a dare or an oversight

    On December 18, 2013 the Appellate Division, Second Department decided Viviane Etienne Med. Care, P.C. v Country-Wide Ins. Co., 2013 NY Slip Op 08430 [2nd Dept. 2013].  In short, the Appellate Division held that a no-fault Plaintiff was not required to establish that its bills was a business record under CPLR 4518 to prove its prima facie case.

    On January 24, 2014, in Horton Med., P.C. v Liberty Mut. Ins. Co., 2014 NY Slip Op 50116(U) [App. Term, 2nd, 11th & 13th Jud. Dists. 2014] the Appelalte Term decided an appeal where the plaintiff's motion was unopposed.  The Appellate Term held "Upon a review of the record, we are in agreement with the Civil Court's determination that the affidavit by plaintiffs' billing manager in support of plaintiffs' motion for summary judgment failed to comply with CPLR 4518 (see Dan Med. P.C. v New York Cent. Mut. Fire Ins. Co., 14 Misc 3d 44 [App Term, 2d & 11th Jud Dists 2006])"

    Of note, the reasoning in Dan Med was rejected by the Appelalte Division in Viviane Etienne Med. Care, P.C. v Country-Wide Ins. Co.

    On February 5, 2014, the Appellate Division decided New York Hosp. Med. Ctr. of Queens v QBE Ins. Corp., 2014 NY Slip Op 00639 [2nd Dept. 2014]. It held: "A medical provider is not required, as part of its prima facie showing, to demonstrate the admissibility of its billing records or to prove the truth of their content under the business records exception to the hearsay rule (see CPLR 4518[a]; Viviane Etienne Med. Care, P.C. v Country-Wide Ins. Co.,AD3d, 2013 NY Slip Op 08430,  [2d Dept 2013])."

    While the Horton decsion could have been an oversight, it also could have been an attempt to somehow distinguish Viviane Etienne Med. Care, P.C. v Country-Wide Ins. Co..  But if that were the case New York Hosp. Med. Ctr. of Queens v QBE Ins. Corp., 2014 NY Slip Op 00639 [2nd Dept. 2014] put that to bed.  But–and im not saying that this is the case–what if the Appellate Term (or any court for that matter) refused to follow precedent?  What is the remedy?  Recusal?  Disband the Appellate Term–the Appellate Term would not exist but for the Appellate Division's say so.  That, however, is not a remedy for a party.  Should a party request recusal of an entire Appellate Term?  I haven't seen that happen oustide of pro se cases.

 

 

 

CPLR 3126 motion made at court appearance

CPLR 3126

Tung Wa Ma v New York City Tr. Auth., 2014 NY Slip Op 00497 [2nd Dept. 2014]

At a court appearance on October 10, 2012, the plaintiffs made an oral application pursuant to CPLR 3126 to preclude Lamboy from testifying at trial. The plaintiffs argued that, despite prior requests and orders, the MTA defendants had failed to provide the requested documents. The MTA defendants opposed the application, arguing, inter alia, that they had been unsuccessfully searching for the documents and that, if given the opportunity, they would provide affidavits attesting to the efforts they had made to find them. The Supreme Court granted the plaintiffs' application without giving the MTA defendants an opportunity to show the efforts they had made to find the requested documents.

Before a court may impose the drastic remedy of preclusion for disclosure violations, it must determine that the offending party's lack of cooperation with disclosure was willful, deliberate, and contumacious (see Aha Sales, Inc. v Creative Bath Prods., Inc., 110 AD3d 1020). Here, the court erred in granting the plaintiffs' application pursuant to CPLR 3126 to preclude Lamboy from testifying at trial without first affording the MTA defendants an opportunity to demonstrate their attempts to comply with the prior order (see Xand Corp. v Reliable Sys. Alternatives Corp., 35 AD3d 849, 850; cf. Mitskevitch v City of New York, 78 AD3d 1137, 1138; Kelleher v Mt. Kisco Med. Group, 264 AD2d 760, 761; Postel v New York Univ. Hosp., 262 AD2d 40, 42).

Bold is mine.

CPLR 3211(e) + alleged lack of standing is not a jurisdictional defect

CPLR 3211(e)
CPLR 5015

JP Morgan Mtge. Acquisition Corp. v Hayles, 2014 NY Slip Op 00485 [2nd Dept. 2015]

Hayles contends that the action should be dismissed insofar as asserted against her for lack of standing because the plaintiff was not the holder of the underlying note and mortgage when it commenced the action (see Homecomings Fin., LLC v Guldi, 108 AD3d 506, 507; Bank of N.Y. v Silverberg, 86 AD3d 274, 279). The Supreme Court properly rejected this claim because Hayles waived it by failing to challenge the plaintiff's standing in her answer or in a pre-answer motion to dismiss (see Deutsche Bank Natl. Trust Co. v Hussain, 78 AD3d 989, 990; see also CPLR 3211[e]; CitiMortgage, Inc. v Rosenthal, 88 AD3d 759, 761).

A defendant seeking to vacate a default pursuant to CPLR 5015(a)(1) must demonstrate a reasonable excuse for the default and a potentially meritorious defense to the action [*2](see Wells Fargo Bank v Malave, 107 AD3d 880). As Hayles failed to demonstrate any potentially meritorious defense to the foreclosure action or a reasonable excuse for her default in opposing the plaintiff's motion for summary judgment, the Supreme Court properly denied that branch of her motion which was to vacate the judgment of foreclosure and sale pursuant to CPLR 5015(a)(1) (see Deutsche Bank Natl. Trust Co. v Hussain, 78 AD3d at 990).

Furthermore, the Supreme Court properly denied those branches of Hayles' motion which were, in effect, pursuant to CPLR 5015(a)(3) and (4) to vacate the judgment of foreclosure and sale. In this regard, the record contains no evidence of fraud or misrepresentation, and an alleged lack of standing is not a jurisdictional defect (see U.S. Bank N.A. v Tate, 102 AD3d 859, 860; Deutsche Bank Natl. Trust Co. v Hunter, 100 AD3d 810, 811).

Bold is mine.

CPLR 3211(a)(1): Deposition not documentary evidence

CPLR 3211(a)(1)

JP Morgan Chase Bank, N.A. v Balliraj, 2014 NY Slip Op 00484 [2nd Dept. 2014]

A motion to dismiss pursuant to CPLR 3211(a)(1) "may be appropriately granted only where the documentary evidence utterly refutes plaintiff's factual allegations, conclusively establishing a defense as a matter of law" (Goshen v Mutual Life Ins. Co. of N.Y., 98 NY2d 314, 326; see Leon v Martinez, 84 NY2d 83, 88; Paramount Transp. Sys., Inc. v Lasertone Corp., 76 AD3d 519, 520; Shaya B. Pac., LLC v Wilson, Elser, Moskowitz, Edelman & Dicker, LLP, 38 AD3d 34, 37-38). The deposition testimony relied upon by the defendants in support of this branch of their cross motion does not constitute "documentary evidence" within the meaning of CPLR 3211(a)(1) (see Fontanetta v John Doe 1, 73 AD3d 78, 86). Further, contrary to the defendants' contention, the other documentary evidence upon which they rely does not conclusively establish that the plaintiff in Action No. 2, Residential Funding Company, LLC, lacks standing.

Bold is mine.