Author: DMG

4518 germane to diagnosis or treatment/police report

CPLR R. 4518

Sermos v Gruppuso, 2012 NY Slip Op 03623 (2nd Dept., 2012)

Initially, we observe that the notations in the hospital record upon which the defendants rely were not attributed to the injured plaintiff. In any event, even if the subject notations were statements attributable to him, none of these notations was germane to his diagnosis or treatment and, at trial, would not be admissible for their truth under the business records exception to the hearsay rule (see CPLR 4518; People v Ortega, 15 NY3d 610; Williams v Alexander, 309 NY 283; Merriman v Integrated Bldg. Controls, Inc., 84 AD3d 897; Carcamo v Stein, 53 AD3d 520). The inadmissibility of these notations is especially apt where, as here, such evidence is the sole proffered basis for the denial of summary judgment (see Phillips v Kantor & Co., 31 NY2d 307, 310), and where the nonmoving party is not able to demonstrate an acceptable excuse for its failure to tender that evidence in admissible form (see Zuckerman v City of New York, 49 NY2d 557, 562; Friends of Animals v Associated Fur Mfrs., 46 NY2d 1065, 1068; Merriman v Integrated Bldg. Controls, Inc., 84 AD3d 897; Allstate Ins. Co. v Keil, 268 AD2d 545, 545-546).

Accordingly, the Supreme Court properly excluded the medical records from its consideration, and properly held that the defendants failed to raise a triable issue of fact in opposition to the plaintiffs' motion (see Monteleone v Jung Pyo Hong, 79 AD3d 988; Joseph v Hemlok Realty Corp., 6 AD3d 392, 393; Allstate Ins. Co. v Keil, 268 AD2d 545; Schiffren v Kramer, 225 AD2d 757; Henderson v L & K Collision Corp., 146 AD2d at 571).

Hazzard v Burrowes, 2012 NY Slip Op 03409 (2nd Dept., 2012)

Moreover, the police accident report was inadmissible, as it was not certified as a business record (see CPLR 4518[a]), and the statements by both the appellant and Burrowes were self-serving, did not fall within any exception to the hearsay rule, and bore upon the ultimate issues of fact to be decided by the jury (see Noakes v Rosa, 54 AD3d 317, 318; Casey v Tierno, 127 AD2d 727, 728).

Res Judicata

Pondview Corp. v Blatt, 2012 NY Slip Op 03618 (2nd Dept., 2012)

Here, the claims asserted by the plaintiffs arose out of the same transaction or series of transactions as those raised in a prior action commenced by the plaintiffs in 2003 (hereinafter the 2003 action). Moreover, all of the claims asserted here either were raised or could have been raised in the 2003 action. Accordingly, notwithstanding the fact that some relief sought in this action is different from that sought in the 2003 action, the Supreme Court properly granted those branches of the defendants' separate motions which were to dismiss the complaint insofar as asserted against each of them pursuant to CPLR 3211(a)(5), based on the doctrine of res judicata.

agreement to agree is not to agree at all

Michael H. Spector, AIA, P.C. v Billy Smith's Sport Ctr., Inc., 2012 NY Slip Op 03610 (2nd Dept., 2012)

Contrary to the plaintiff's contention, there is no valid line of reasoning or permissible inferences that could lead a rational person to the conclusion reached by the jury with respect to the causes of action to recover damages for beach of contract or to recover on an account stated. With respect to the cause of action alleging breach of contract, the evidence adduced at trial demonstrated that the parties had a mere agreement to agree, which is insufficient to bind either party (see Joseph Martin, Jr., Delicatessen v Schumacher, 52 NY2d 105, 109-110; Maffea v Ippolito, 247 AD2d 366, 367). With respect to the cause of action to recover on an account stated, the parties did not agree on a price that the individual defendants would pay for the plaintiff's services, and the plaintiff thus failed to establish a requisite element for recovery on a theory of account stated (see Heelan Realty & Dev. Corp.v Ocskasy, 27 AD3d 620). Accordingly, the Supreme Court properly granted those branches of the individual defendants' motion which were pursuant to CPLR 4404(a) to set aside the verdict and for judgment as a matter of law dismissing the causes of action alleging breach of contract and to recover on an account stated insofar as asserted against them.

JMF Consulting Group II, Inc. v Beverage Mktg. USA, Inc., 2012 NY Slip Op 05392 (2nd Dept. 2012)

JMF and Ferolito established, prima facie, that the alleged oral agreement was too indefinite to be enforceable and was merely an agreement to agree (see Joseph Martin, Jr., Delicatessen v Schumacher, 52 NY2d 105; Mellen & Jayne, Inc. v AIM Promotions, Inc., 33 AD3d 676, 677-678; Flanel v Flanel, 152 AD2d 536, 536-537). Moreover, since the terms of each loan were set out in writing in each of the separate promissory notes executed by BMU, BMU was precluded from establishing the existence of an enforceable oral agreement by relying on parole evidence that contradicted the express terms of those notes (see Marine Midland Bank-S. v Thurlow, 53 NY2d 381, 387; Dong Won Kim v Frank H. Truck Corp., 81 AD3d 586, 587; Friends of Avalon Preparatory School v Ehrenfeld, 6 AD3d 658, 658-659). Since BMU failed to raise a triable issue of fact in response to the prima facie showing of JMF and Ferolito, those branches of the motion of JMF and Ferolito which were for summary judgment dismissing the first counterclaim and the first cause of action in the third-party complaint should have been granted.

rare appellate procedure

Thomas v Kiriluk, 2012 NY Slip Op 03631 (2nd Dept., 2012)

"As a general rule, this Court does not consider an issue on a subsequent appeal which was 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" (Kitt v Podlofsky, 72 AD3d 1030, 1031; see Bray v Cox, 38 NY2d 350). Here, the plaintiffs appealed from an order dated November 10, 2010, which granted the defendants' motion for summary judgment dismissing the complaint, but the appeal was dismissed by decision and order on motion of this Court dated October 24, 2011, for failure to prosecute. Nevertheless, under the circumstances, we exercise our discretion to review the issues raised by the plaintiffs on their appeal from the judgment (see Kitt v Podlofsky, 72 AD3d at 1031).

Kalafatis v Royal Waste Servs., Inc., 2012 NY Slip Op 03603 (2nd Dept., 2012)

As a general rule, this Court does not consider an issue on a subsequent appeal which was raised or could have been raised in an earlier appeal which was dismissed for lack of prosecution, although this Court has the inherent jurisdiction to do so (see Rubeo v National Grange Mut. Ins. Co., 93 NY2d 750, 754; Bray v Cox, 38 NY2d 350, 353). While the better practice would have been for the plaintiff to withdraw the prior appeal rather than abandon it, nonetheless, we exercise our discretion to review the issues raised on the appeal from so much of the order dated April 27, 2011, as was made upon reargument (see Franco v Breceus, 70 AD3d 767; Newburger v Sidoruk, 60 AD3d 650; DiGiaro v Agrawal, 41 AD3d 764; Cesar v Highland Care Ctr., Inc., 37 AD3d 393).

Interesting transcript

I haven't seen an unsigned transcript permitted to be used in this context

CPLR R. 3116 Signing deposition; physical preparation; copies
(a) Signing.

CPLR R. 3117

Boadu v City of New York, 2012 NY Slip Op 03581 (2nd Dept., 2012)

The Supreme Court properly considered the deposition transcripts submitted by the Transit Authority in support of its cross motion for summary judgment. Although unsigned, the deposition transcripts were certified by the reporter and the plaintiff did not raise any challenges to their accuracy. Thus, the transcripts qualified as admissible evidence for purposes of the cross motion (see Rodriguez v Ryder Truck, Inc., 91 AD3d 935, 936; Zalot v Zieba, 81 AD3d 935).

Relying on this admissible evidence, the Transit Authority established, prima facie, that the station agent did no more than furnish the police with information which, after an investigation, resulted in the alleged unlawful detention and arrest of the plaintiff. "[A] civilian complainant, by merely seeking police assistance or furnishing information to law enforcement authorities who are then free to exercise their own judgment as to whether an arrest should be made and criminal charges filed, will not be held liable for false arrest or malicious prosecution" (Mesiti v Wegman, 307 AD2d 339, 340 [internal quotation marks omitted]; see Levy v Grandone, 14 AD3d 660, 661). However, in opposition to this prima facie demonstration of entitlement to judgment as [*2]a matter of law, the plaintiff, through his deposition testimony, raised a triable issue of fact as to whether the station agent "affirmatively induced the officer to act, such as taking an active part in the arrest and procuring it to be made or showing active, officious and undue zeal, to the point where the officer is not acting of his own volition" (Mesiti v Wegman, 307 AD2d at 340 [internal quotation marks omitted]). Accordingly, that branch of the Transit Authority's cross motion which was for summary judgment dismissing the complaint insofar as asserted against it was properly denied.

court’s inherent power to dismiss

Atkins-Payne v Branch, 2012 NY Slip Op 03577 (2nd Dept., 2012)

The plaintiff moved pursuant to CPLR 3215 for leave to enter a default judgment against the defendants upon their failure to appear or answer the complaint. The Supreme Court denied the plaintiff's motion on the ground that she had failed to effect proper service on any of the defendants. In addition, the Supreme Court, sua sponte, in effect, directed the dismissal, with prejudice, as time-barred, of all causes of action to recover damages for fraud, based upon the dates of certain transactions as alleged in the plaintiff's papers. None of the defendants had moved to dismiss those causes of action as time-barred, and the plaintiff was not given the opportunity to submit argument or evidence that those causes of action were timely pursuant to CPLR 213(8). The plaintiff appeals from so much of the order as sua sponte, in effect, directed the dismissal, with prejudice, of the causes of action to recover damages for fraud. We reverse the order insofar as appealed from.

"A court's power to dismiss a complaint, sua sponte, is to be used sparingly and only when extraordinary circumstances exist to warrant dismissal" (U.S. Bank, N.A. v Emmanuel, 83 AD3d 1047, 1048; see Rienzi v Rienzi, 23 AD3d 450). Here, the Supreme Court was not presented with any extraordinary circumstances warranting dismissal of the causes of action to recover damages for fraud. Accordingly, the Supreme Court erred in sua sponte, in effect, directing the dismissal, with prejudice, of those causes of action (see During v City of New Rochelle, 55 AD3d 533, 534).

3001: Declaratory Judgment

CPLR § 3001 Declaratory Judgment

found an older post on it 

Big Four LLC v Bond St. Lofts Condominium, 2012 NY Slip Op 02421 1st Dept., 2012)

In August 2010, plaintiff moved for an order, pursuant to CPLR 3126(3), striking defendant's pleading, or, alternatively, to compel production of requested information under CPLR 3124.
By notice of cross motion, defendant moved for summary judgment dismissing the complaint, and for summary judgment on its counterclaim for legal fees. The court granted defendant's cross motion for summary judgment, dismissing the declaratory judgment claim on the ground that "no justiciable controversy has been presented." It dismissed the breach of contract claim on the ground that plaintiff asked for an "advisory opinion" from the board, and the board provided such opinion. The court also initially granted summary judgment to defendant on its counterclaim for legal fees, but later denied it when plaintiff moved for reargument. This appeal followed.

Supreme Court's dismissal of the first cause of action on the ground that a declaratory judgment would be merely "advisory" was an improvident exercise of its discretion. "[W]hen a party contemplates taking certain action a genuine dispute may arise before any breach or violation has occurred" (New York Pub. Interest Research Group v Carey, 42 NY2d 527, 530 [1977]). Defense counsel's November 23, 2009 letter and defendant's subsequent expression of its intent, constituted "past conduct" creating a genuine dispute for which a declaration would have had an "immediate and practical effect of influencing [the parties'] conduct" (id. at 531; see M & A Oasis v MTM Assoc., 307 AD2d 872 [2003]).

We, however, affirm the dismissal of the complaint's first cause of action for a declaratory judgment as to whether plaintiff may lease to nonparty 7-Eleven, on the ground that plaintiff conceded below that 7-Eleven is no longer interested in such a lease. Accordingly, the dispute is moot, and there is no longer a "justiciable controversy" within the meaning of CPLR 3001 (see Matter of Ideal Mut. Ins. Co., 174 AD2d 420 [1991]). Furthermore, there is no basis to find that the exception for cases where the issue presented "is likely to recur, typically evades review, and raises a substantial and novel question" is applicable (Zuckerman v Goldstein, 78 AD3d 412 [2010]) lv denied 17 NY3d 779 [2011]).

Similarly, the second cause of action – asserting a bad faith breach of contract by defendant – was properly dismissed. The defendant condominium established its prima facie entitlement to judgment as a matter of law by demonstrating that the actions it took by objecting to the proposed intended use of the commercial space by 7-Eleven were "taken in good faith and in the exercise of honest judgment in the lawful and legitimate furtherance of corporate purposes" (Matter of Levandusky v One Fifth Ave. Apt. Corp., 75 NY2d 530, 537—538 [1990] [internal quotations omitted]). Aside from some conclusory, unsupported and self-serving conjecture, plaintiff has failed to raise any triable issues regarding defendant's alleged bad faith in objecting to 7-Eleven's use of the commercial space.

BLT Steak, LLC v 57th St. Dorchester, Inc.,2012 NY Slip Op 02159 (1st Dept., 2012)

Defendant's withdrawal of the notice to cure rendered moot that branch of plaintiff's motion for declaratory relief as to the validity of the notice to cure, as there was no longer any controversy with respect to the notice (see CPLR 3001). Plaintiff's request for injunctive relief was also rendered moot by the withdrawal of the notice, because there was no longer any threat that plaintiff's leasehold would be terminated as a result of its alleged breach of the lease (see Mannis v Jillandrea Realty Co., 94 AD2d 676, 677 [1983]).

Plaintiff is not entitled to summary judgment declaring that it did not breach the parties' lease; the conflicting expert affidavits have raised issues of fact with respect to the damage to the steel and slab underlying plaintiff's kitchen. Contrary to plaintiff's contention, defendant's withdrawal of the notice to cure does not constitute an "adjudication on the merits," as it is undisputed that defendant never filed an action based on the allegations in the notice in a court of any state or the United States (CPLR 3217[c]).

The court properly dismissed plaintiff's third cause of action, for breach of the implied covenant of good faith and fair dealing and/or breach of contract. The "American rule" precludes plaintiff from recovering its attorney's fees as damages in the event it prevails on its cause of action, and plaintiff has failed to show that any exception is applicable (see Gotham Partners, L.P. v High Riv. Ltd. Partnership, 76 AD3d 203, 204 [2010], lv denied 17 NY3d 713 [2011]). Moreover, plaintiff has failed to plead any damages other than attorney's fees (see Gordon v Dino De Laurentiis Corp., 141 AD2d 435, 436 [1988]).