Author: DMG

Bill of Particulars “not to be used to obtain evidentiary material”

Fremont Inv. & Loan v Gentile, 2012 NY Slip Op 03136 (2nd Dept., 2012)

The purpose of a bill of particulars is to amplify the pleadings, limit the proof, and prevent surprise at trial (see Jones v LeFrance Leasing L.P., 81 AD3d 900, 902; Mendelson v Szczupak, 199 AD2d 479; Nuss v Pettibone Mercury Corp., 112 AD2d 744, 744). "A bill of particulars may not be used to obtain evidentiary material" (Nuss v Pettibone Mercury Corp., 112 AD2d at 744; see Tully v Town of N. Hempstead, 133 AD2d 657; Ginsberg v Ginsberg, 104 AD2d 482, 484).

Here, the appellant's demand for a bill of particulars improperly included requests for detailed information of an evidentiary nature (see Posh Pillows v Hawes, 138 AD2d 472, 474). Thus, the responses in the plaintiff's bill of particulars objecting to those demands constituted an adequate response. Accordingly, the Supreme Court properly denied that branch of the appellant's motion which was to preclude the plaintiff from giving evidence at trial with respect to the denials of and defenses to the appellant's counterclaim, as set forth in the plaintiff's bill of particulars.

Preliminary Injunction treated as Summary Judgment

Grand Aerie of Fraternal Order of Eagles v Mostrando, 2012 NY Slip Op 03139 (2nd Dept., 2012)

A "motion for a temporary 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, this power does not extend to an evaluation of conflicting evidence (see Livas v Mitzner, 303 AD2d 381, 382; Ratner v Steinberg, 259 AD2d 744). 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 (see Ugiri Progressive Community, Inc. v Ukwuozo, 57 AD3d 656, 657; 68 Burns New Holding, Inc. v Burns St. Owners Corp., 18 AD3d 857). Here, there is no indication in the record that the Supreme Court provided notice to the parties that the motion and cross motion for preliminary injunctive relief would be treated as a motion and cross motion for summary judgment, or that the parties agreed to chart a summary judgment course (see Moore v Ruback's Grove Campers' Assn., Inc., 85 AD3d 1220, 1221; Teri-Nichols Indus. Food Merchants, LLC v Elk Horn Holding Corp., 37 AD3d 198, 200). Accordingly, the Supreme Court erred in treating the motion and cross motion as if they were for summary judgment and determining them on that basis.

Under the unique factual circumstances of this case, we decline to exercise our discretion to determine that branch of Grand Aerie's motion which was for a preliminary injunction, or the cross motion for a preliminary injunction (see Moore v Ruback's Grove Campers' Assn., Inc., 85 AD3d at 1221; Byrne Compressed Air Equip. Co. v Sperdini, 123 AD2d 368, 369). Rather, we [*3]remit the matter to the Supreme Court, Westchester County, for further proceedings, including the determinations of that branch of the motion and the cross motion (see Ugiri Progressive Community, Inc. v Ukwuozo, 57 AD3d at 657).

Bureaucracy

DeMarquez v Gallo, 2012 NY Slip Op 03130 (2nd Dept., 2012)

On March 22, 2007, the plaintiff, a passenger in a motor vehicle, was involved in an accident with another motor vehicle, owned and operated by the defendants. The plaintiff commenced this action against the defendants to recover damages for personal injuries allegedly sustained by her as a result of the defendants' negligence. After the plaintiff filed a note of issue, on May 15, 2001, the parties appeared in the jury scheduling part to select a jury. On that day, the Supreme Court directed the transfer of the action to Civil Court, Kings County, pursuant to CPLR 325(d). Due to a clerical error, the case was inadvertently marked off the trial calendar rather than transferred to the Civil Court.

Upon discovering this clerical error, the plaintiff moved to restore the case to the trial calendar. The Supreme Court denied that motion in an order dated August 18, 2004. The plaintiff appealed and, by decision and order dated May 23, 2006, this Court reversed the order dated August 18, 2004, vacated the dismissal of the action, and restored the action to the trial calendar (see DeMarquez v Gallo, 29 AD3d 853).

Subsequent to this Court's decision and order dated May 23, 2006, restoring the action to the trial calendar, the plaintiff was erroneously informed by a clerk of the Supreme Court that she had to move again to restore the action. As a result, the plaintiff made a subsequent motion to restore the action, relying upon this Court's decision and order dated May 23, 2006. The Supreme Court denied the plaintiff's motion in an order dated August 4, 2009. 

After first moving unsuccessfully to reargue the motion to restore, the plaintiff moved for leave to renew her motion to restore the action to the trial calendar. In the order appealed from, the Supreme Court denied the plaintiff's motion for leave to renew. The plaintiff appeals and we reverse.

“dual capacity”

Nepomuceno v City of New York, 2012 NY Slip Op 02572 (1st Dept., 2012)

In denying defendant's motion for summary judgment, the motion court relied on the "dual capacity" doctrine, which has been rejected by the Court of Appeals (see Billy v Consolidated Mach. Tool Corp., 51 NY2d 152, 159-160 [1980]), and found that this action was not barred by the Workers' Compensation Law. However, where, as here, "the availability of workmen's compensation hinges upon the resolution of questions of fact or upon mixed questions of fact and law," the matter must, in the first instance, be determined by the Workers' Compensation Board (Liss v Trans Auto Sys., 68 NY2d 15, 20—21 [1986], quoting O'Rourke v Long, 41 NY2d 219, 228 [1976]; see also Valenziano v Niki Trading Corp., 21 AD3d 818 [2005]). Accordingly, instead of resolving the motion, the motion court should have referred the matter to the Board for a hearing and determination as to the availability of workers' [*2]compensation (see Liss, 68 NY2d at 21; Valenziano, 21 AD3d at 818; Mattaldi v Beth Israel Med. Ctr., 297 AD2d 234 [2002]). The motion court may stay the matter pending resolution by the Workers' Compensation Board.

Patricka v City of New York, 2012 NY Slip Op 02163 (1st Dept., 2012)

Montefiore's motion should have been granted because plaintiff's exclusive remedy in this action is under the Workers' Compensation Law. The record shows that plaintiff, an employee of Montefiore, was injured when she tripped on a sidewalk adjacent to the emergency room, on her way back from Montefiore's human resources department to her own office, during working hours; it is uncontested that Montefiore was charged with the duty of maintaining in a safe condition the sidewalk on which plaintiff tripped. Although plaintiff contends that she was on a "purely personal mission" at the human resources department, inquiring about Montefiore holiday party tickets, this was, at least, a dual-purpose activity not unrelated to her job (see Matter of Neacosia v New York Power Auth., 85 NY2d 471, 475 [1995]). Moreover, even accepting that this was a purely personal task, the record shows that plaintiff was returning to her [*2]office, during working hours, for the purpose of resuming work, and was injured on property which her employer was responsible to maintain (see Sulecki v City of New York, 74 AD3d 454 [2010]).

4518

CPLR R. 4518 Business records

Landmark Capital Invs., Inc. v Li-Shan Wang, 2012 NY Slip Op 02430 (1st Dept., 2012)

The record supports the finding that defendant Wang (defendant) was properly served. The detailed description of the service attempts on defendant and of the interior of defendant's building supported the determination that the process server was credible. Although the process server was under investigation for improper record keeping by the Department of Consumer Affairs, the relevant portions of the record support the finding that his version of facts was accurate (cf. Matter of Barr v Department of Consumer Affairs of City of N.Y., 70 NY2d 821 [1987]).

Plaintiff established its entitlement to judgment as a matter of law by relying in part on the original loan file prepared by its assignor. Plaintiff relied on these records in its regular course of its business (see Merrill Lynch Bus. Fin. Servs. Inc. v Trataros Constr., Inc., 30 AD3d 336, 337 [2006], lv denied 7 NY3d 715 [2006]). Defendant failed to raise a triable issue as to whether plaintiff was "doing business in this state without authority," which, under Business Corporation Law § 1312(a), would preclude it from bringing suit. Although plaintiff often purchased debt held by New York debtors, this, as an activity carried on by an Ohio company with no offices or employees in New York, is not sufficient to constitute doing business under section 1312 (see Beltone Elecs. Corp. v Selbst, 58 AD2d 560 [1977]).

3212 and (f)

3212

Fook Cheung Lung Realty Corp. v Yang Tze Riv. Realty Corp., 2012 NY Slip Op 02793 (1st Dept., 2012)

J & A provided its insurer with notice of plaintiff's property damage claim within a reasonable time (see Great Canal Realty Corp. v Seneca Ins. Co., Inc., 5 NY3d 742, 743 [2005]). J & A made a prima facie showing on its motion through the affidavit of its vice president stating the date that J & A arrived at the construction site and the extent of its duties and denying knowledge of the property damage until J & A's receipt of an attorney's letter in May of 2007, coupled with the deposition testimony of plaintiff's president regarding the date he first noticed the damage, which was before J & A's arrival. QBE's claim in opposition that J & A had knowledge of the damage before May of 2007 failed to raise an issue of fact, as evidence of conversations between plaintiff's president and a representative of the general contractor working at the adjoining premises and of complaints to the Department of Buildings would not necessarily have put J & A on notice, and it is mere conjecture that J & A was in fact told by others [*2]of the damage. QBE's claimed need for discovery to oppose the motion reflected an ineffectual mere hope (see MAP Mar. Ltd. v China Constr. Bank Corp., 70 AD3d 404 [2010]). In view of the foregoing, we also find that the determination as to the duty to indemnify was not premature.

Taylor v One Bryant Park, LLC, 2012 NY Slip Op 02427 (1st Dept., 2012)

Although summary judgment is not warranted where "credible evidence reveals differing versions of the accident" (Ellerbe v Port Auth. of N.Y. & N.J., 91 AD3d 441, 442 [2012]), the evidence upon which defendants rely is neither credible, nor admissible. The workers' compensation C-2 report is not signed or authenticated, and it is not conclusively clear who created the report or where that person acquired the information (see Zuluaga v P.P.C. Const., LLC, 45 AD3d 479 [2007]). Assuming that the site medic listed on the report completed it, an affidavit from that same medic gives a different version of the accident from that listed on the C-2. The affidavit does not address the inconsistency, and is also not notarized. "While hearsay statements may be used to oppose a summary judgment motion, such evidence is insufficient to warrant a denial of the motion where [as here] it is the only evidence submitted in opposition" (see Rivera v GT Acquisition 1 Corp., 72 AD3d 525, 526 [2010]).

Arbitration

Brooks v BDO Seidman, LLP, 2012 NY Slip Op 02768 (1st Dept., 2012)

The arbitration award was properly confirmed since the arbitration panel did not engage in any misconduct to warrant vacatur of the award (see CPLR 7511[b][1][i]). There is no indication that the panel precluded or restricted the parties from submitting any evidence on the motion. Indeed, the record shows that the parties submitted extensive briefs and documentary evidence in support of their respective positions. Although the panel made a determination of the proceeding on respondent's motion for summary judgment, this was not improper since arbitrators are not compelled to conduct hearings, and may decide a case on summary judgment (see e.g. TIG Ins. Co. v Global Intl. Reins. Co., Ltd., 640 F Supp 2d 519, 523 [SD NY 2009]; see also Griffin Indus., Inc. v Petrojam, Ltd., 58 F Supp 2d 212, 219-220 [SD NY 1999]). Moreover, the arbitration clause of the parties' Engagement Letter did not prohibit the arbitrators from using this type of disposition (see Matter of Silverman [Benmor Coats], 61 NY2d 299, 308 [1984]; cf. Barnes v Washington Mut. Bank, FA, 40 AD3d 357 [2007], lv denied 9 NY3d 815 [2007], cert [*2]denied 553 US 1057 [2008]).

Matter of Matter of Beals v New York City Tr., 2012 NY Slip Op 02784 (1st Dept., 2012)

The arbitrator properly declined to apply the collective bargaining agreement's statute of limitations on the ground that, pursuant to its terms, it had not commenced running while an investigation of the conduct leading to the disciplinary charges against petitioner was under way. In any event, any error by the arbitrator in interpreting the facts or applying the law on this issue did not provide a basis for vacatur of the award (see Matter of Adolphe v New York City Bd. of Educ., 89 AD3d 532, 533 [2011]). Petitioner waived his claim that the arbitrator should have enforced his witness subpoenas by failing to seek a stay of the arbitration and a court ruling compelling compliance and by continuing with the arbitration. Moreover, an arbitrator's erroneous evidentiary rulings may support vacatur only if the evidence would have been pertinent and material (see Matter of Professional Staff Congress/City Univ. of N.Y. v Board of Higher Educ. of City of N.Y., 39 NY2d 319, 323 [1976]). The unproduced testimony of the investigators would have been merely hearsay and cumulative of the testimony based on personal knowledge that had been heard from witnesses and targets of petitioner's misconduct, the testimony of the Transit Authority managers that the use of profanity was common in the workplace would not have shed light on other charges or rebutted the charge that petitioner's use of profanity was pervasive, and the woman working in a rehabilitation facility was not a Transit Authority employee subject to subpoena. To the extent that any of the unproduced testimony may have been useful for impeachment, the foreclosure of collateral evidence going to credibility is not misconduct (see Kaminsky v Segura, 26 AD3d 188, 189 [2006]; Matter of Smith v Suffolk County Police Dept., 202 AD2d 678, 679 [1994], lv denied 84 NY2d 807 [1994]). Petitioner fails to point to any provision in the collective bargaining agreement to support his contention that the arbitrator exceeded a restriction on his power (see Matter of Chaindom Enters., Inc. v Furgang & Adwar, L.L.P., 10 AD3d 495, 497 [2004], lv denied 4 NY3d 709 [2005]). The contention that the failure to consider his alcoholism defense renders the award in violation of public policy is merely a semantic variation on the ineffective claim that the arbitrator failed to properly evaluate [*2]the evidence (see Kalyanaram v New York Inst. of Tech., 79 AD3d 418, 419-420 [2010], lv denied 17 NY3d 712 [2011]).

Transparent Value, L.L.C. v Johnson, 2012 NY Slip Op 02388 (1st Dept., 2012)

Contrary to petitioner's claim, the award does not violate public policy. When a court is asked to vacate an arbitral award on public policy grounds, "[t]he focus of inquiry is on the result, the award itself" (Matter of New York State Correctional Officers & Police Benevolent Assn. v State of New York, 94 NY2d 321, 327 [1999] [emphasis in original]). "[W]here the final result creates an explicit conflict with other laws and their attendant policy concerns," a court will vacate the award (id. [emphasis in original]). In the case at bar, as in Correctional Officers (see id. at 327-328), the award does not violate a law.
Petitioner will not violate any laws by paying respondent x dollars or transferring y units to him. Petitioner's reliance on a letter from ALPS Distributors, Inc., the distributor of petitioner's mutual funds, is unavailing; ALPS has no obligation to pay respondent anything.

"An arbitration award may be vacated on public policy grounds only where it is clear on its face that public policy precludes its enforcement" (Matter of Jaidan Indus. v M.A. Angeliades, Inc., 97 NY2d 659, 661 [2001]; see also Matter of Metrobuild Assoc., Inc. v Nahoum, 51 AD3d 555, 556-557 [2008], lv denied 11 NY3d 704 [2008]). That is not the case here.

It is true that "a court will not enforce a contract that violates public policy" (Correctional Officers, 94 NY2d at 327). However, "the courts must be able to examine an arbitration agreement . . . on its face, without engaging in extended factfinding or legal analysis, and conclude that public policy precludes its enforcement" (Matter of Sprinzen [Nomberg], 46 NY2d 623, 631 [1979]). On its face, the agreement between the parties does not require respondent to perform brokerage services (see Foundation Ventures, LLC v F2G, Ltd., 2010 WL 3187294, *1, *7, 2010 US Dist LEXIS 81293, *3, *21 [SD NY, Aug. 11, 2010][FN1]).

Ayzenberg v Bronx House Emanuel Campus, Inc., 2012 NY Slip Op 02396 (1st Dept., 2012)

In this action for personal injuries allegedly suffered by plaintiff while she and her husband were guests at defendant's camp facility, defendant moved to stay the proceeding and compel arbitration based on an arbitration clause contained in the application for defendant's camp program that was filled out by plaintiff's husband and bears his signature. We find that the arbitration clause is binding on plaintiff. Irrespective of whether there was a language barrier that precluded plaintiff and her husband from understanding the content of the application, they are bound by its enforceable terms (see Shklovsky v Kahn, 273 AD2d 371, 372 [2000]). Although plaintiff's husband signed the application, which provided for the couples' joint participation in defendant's program, plaintiff is bound by it since her husband had, at the very least, apparent authority to sign for her (see Restatement, Agency 2d, § 8 and § 27).

Plaintiff's assertion that the arbitration clause does not apply to this personal injury action because it provides for the submission of claims "pursuant to the Commercial Rules of the American Arbitration Association," is unavailing. The clause provides for arbitration of "any dispute resulting from [their] stay at" defendant's facility (italics supplied), and thus, this matter is not excluded (see Marmet Health Care Center, Inc., et al. v Brown, __ US __, 132 S Ct 1201 [2012]; see also Remco Maintenance, LLC v CC Mgt. & Consulting, Inc., 85 AD3d 477 [2011]).

Kudler v Truffelman, 2012 NY Slip Op 02155 (1st Dept., 2012)

As the partnership agreement between the parties did not involve interstate commerce, and was not covered by the Federal Arbitration Act, the award of punitive damages was improper under the rule in Garrity v Lyle Stuart, Inc. (40 NY2d 354 [1976]), which, unless preempted, prohibits arbitrators from awarding punitive damages under New York public policy.

The court erred in confirming the arbitrator's decision to award petitioner the assignment of the insurance policies taken out on his life by the partnership. The arbitrator exceeded her powers and gave a completely irrational construction to the provisions of the partnership agreement, thereby effectively rewriting it in a manner that was unjust and in violation of the spirit of the agreement (see Matter of Turner [Booth Mem. Med. Ctr.]), 63 NY2d 633 [1984]; Fishman v Roxanne Mgt., 24 AD3d 365, 366 [2005]); Integrated Sales v Maxell Corp. of Am., 94 AD2d 221, 225 [1983]). The arbitrator also exceeded her powers in this matter by ordering respondents to pay any and all loans taken out by them on those assigned life insurance policies. The court otherwise properly declined to vacate the arbitration award in part or in its entirety, and, contrary to petitioner's claim, properly excluded the face value of the assigned policies from the income executions. In this regard, since there was no clearly prevailing party, the award of attorney's fees was unwarranted (see Nestor v McDowell, 81 NY2d 410, 415-416 [1993]; Village of Hempstead v Taliercio, 8 AD3d 476 [2004]).

In light of the fact that the arbitration award was completely irrational to the extent it ordered respondents to assign the life insurance policies to petitioner and to the extent it further ordered respondents to pay back the loans taken out by them on those assigned policies, and must be modified to the extent of reassigning those policies to respondents, the appeals from the subsequent orders with respect to respondents' obligation to pay the loans on the policies are moot.

Gomez v Brill Sec., Inc., 2012 NY Slip Op 01877 (1st Dept., 2012)

Insofar as, here, the agreement to arbitrate, by its very terms, clearly precludes arbitration when arbitrable claims are brought as a class action, plaintiffs cannot be required to arbitrate their class action claims. While "[i]t has long been this State's policy that, where parties enter into an agreement and, in one of its provisions, promise that any dispute arising out of or in connection with it shall be settled by arbitration, any controversy which arises between them and is within the compass of the provision must go to arbitration" (Matter of Exercycle Corp. [Mararatta], 9 NY2d 329, 334 [1961]), whether arbitration is mandated, however, turns entirely on the language of the agreement between the parties (Matter of Waldron [Goddess], 61 NY2d 181, 183 [1984] ["It is settled that a party will not be compelled to arbitrate and, thereby, to surrender the right to resort to the courts, absent evidence which affirmatively establishes that the parties expressly agreed to arbitrate their disputes" (internal quotation marks omitted)]; Matter of Acting Supt. of Schools of Liverpool Cent. School Dist. [United Liverpool Faculty Assn.], 42 NY2d 509, 512 [1977]; Gulf Underwriters Ins. Co. v Verizon Communications, Inc., 32 AD3d 709, 710 [2006]; Harris v Shearson Hayden Stone, 82 AD2d 87, 95 [1981], affd 56 NY2d 627 [1982]). Accordingly, since an agreement to arbitrate is a contract, and when clear, shall "be enforced according to its terms," (Vermont Teddy Bear Co. v 538 Madison Realty Co., 1 NY3d 470, 475 [2004] [internal quotation marks omitted]; First Options of Chicago, Inc. v Kaplan, 514 US 938, 943 [1995] ["arbitration is simply a matter of contract between the parties"]), while parties who clearly and expressly agree to arbitrate shall be so compelled, parties who unequivocally agree to forego arbitration under certain circumstances cannot be compelled to arbitrate when those enumerated circumstances exist.

Experts

3101

2106

Rojas v Palese, 2012 NY Slip Op 02790 (1st Dept., 2012)

The jury's finding that defendant Palese deviated from the standard of care in causing plaintiff's aorta to tear during a laparoscopic donor nephrectomy was based on legally sufficient evidence and was not against the weight of the evidence (see Cohen v Hallmark Cards, 45 NY2d 493, 498-499 [1978]). Defendants' objections to the qualifications of plaintiff's vascular surgery expert go to the weight and not the admissibility of the expert's testimony (Williams v Halpern, 25 AD3d 467, 468 [2006]); the weight to be accorded to conflicting expert testimony is a matter for the jury (see Torricelli v Pisacano, 9 AD3d 291 [2004], lv denied 3 NY3d 612 [2004]).

Plaintiff's expert was properly allowed to testify as to future damages since there was no showing of a willful failure to disclose this testimony or of resulting prejudice to defendants (see CPLR 3101[d][1][i]; Colome v Grand Concourse 2075, 302 AD2d 251 [2003]). The videotape and photographs proffered by defendants were properly excluded; the limited probative value of a demonstration of Palese's performance of the same procedure on another patient was outweighed by the prejudicial effect of showing the jury the complexity of the surgery and the level of skill exhibited by Palese (see Glusaskas v John E. Hutchinson, III, M.D., P.C., 148 AD2d 203, 205-206 [1989]).

Cruz v Rivera, 2012 NY Slip Op 02811 (1st Dept., 2012)

The unaffirmed MRI reports, which were referred to and not disputed by defendant's medical expert, and were relied upon by plaintiff's physician, were properly considered in opposition to the motion since they were not the sole basis for the findings of plaintiff's physician (see Rubencamp v Arrow Exterminating Co., Inc., 79 AD3d 509 [2010]).

Underbruckner Realty Corp. v Tax Commn. of the City of N.Y., 2012 NY Slip Op 02767 (1st Dept., 2012)

Petitioners rebutted the presumption of validity as to the existing tax assessments by presenting "substantial evidence" demonstrating "the existence of a valid and credible dispute regarding valuation" (see Matter of FMC Corp. [Peroxygen Chems. Div.] v Unmack, 92 NY2d 179, 187-188 [1998]). The trial court's determination that petitioners' property has been overvalued is supported by a preponderance of the evidence (see id. at 188). Looking to the Medicaid reimbursement rate as a means to assess the value of a nursing home has been judicially recognized (see e.g. Tarrytown Hall Care Ctr. v Board of Assessors, Sup Ct, Westchester County, Mar. 4, 2004, Rosato, J., Index No. 14267/98).

Respondents' expert's assertion that the methodology he employed is the only way to assess the value of a nursing home's real estate runs afoul of the principle that "there is no fixed method for determining that value" (see Matter of Allied Corp. v Town of Camillus, 80 NY2d 351, 356 [1992]). Courts are "under no compunction to . . . confine[] assessors to any one course" (see Matter of Merrick Holding Corp. v Board of Assessors of County of Nassau, 45 NY2d 538, 541 [1978]). Furthermore, both the experts used the income capitalization approach, which calls for "the exercise of judgment by the appraiser," because the approach yields, "at best, no more than an estimate of the present worth of the benefits to be reaped from the property at issue" (id., 45 NY2d at 542). In addition, whether the apartment buildings relied upon by petitioners were valid "comparables" was a question of fact to be resolved by the trial court (see Matter of Miriam Osborn Mem. Home Assn. v Assessor of City of Rye, 80 AD3d 118, 144 [2010]).

It is true that respondents presented evidence upon which the court could reasonably have [*2]found that the Medicaid reimbursement rate (even as amended upward by non-Medicaid patient data) was not an accurate measure of market rent. However, in reducing the existing assessments in half, the court implicitly found that the market value numbers proffered by petitioners were below market and partially credited respondents' methodology, finding, however, that it produced above-market values for the respective tax years. Contrary to respondents' contention, the court did not improperly "split the difference." The court's valuations were "within the range of the trial evidence" (see Matter of Kips Bays Towers Condominium v Commissioner of Fin., 66 AD3d 506, 506-507 [2009], lv denied 14 NY3d 708 [2010]).

We also reject respondents' contention that the court failed to set forth "the essential facts found upon which the ultimate finding of facts [was] made" (RPTL 720[2]). While the court might have addressed the respective methodologies and calculations of the parties more specifically, it did state the essential fact: that both sides presented cogent arguments and that "the true valuation of the property is greater than that proposed by the Petitioner[s] and less than that proposed by the Respondents" (cf. Matter of Trinity Place Co. v Finance Adm'r of City of N.Y., 72 AD2d 274, 275 [1980], affd 51 NY2d 890 [1980]).

Ramkumar v Grand Style Transp. Enters. Inc., 2012 NY Slip Op 02597 (1st Dept., 2012) (note the dissent)

Defendants made a prima facie showing of entitlement to judgment as a matter of law. The differences in the defense experts' range-of-motion findings are minor and both doctors concluded that plaintiff's range of motion is normal (see Feliz v Fragosa, 85 AD3d 417, 418 [2011]).

In opposing defendants' motions, plaintiff failed to offer a reasonable explanation for a significant gap in his medical treatment that was raised by the Bissessar defendants when they cross-moved for summary judgment. As the Court of Appeals held in Pommells v Perez (4 NY3d 566 [2005]), "a plaintiff who terminates therapeutic measures following the accident, [*2]while claiming serious injury,' must offer some reasonable explanation for having done so" (id. at 574).

Plaintiff's accident occurred on April 8, 2007 and he underwent arthroscopic surgery on his right knee on June 29, 2007. As of July 5, 2007, plaintiff's orthopedic surgeon recommended physical therapy. When asked when he last received physical therapy, plaintiff testified that he was "cut off" five months before his July 2008 deposition. Therefore, the record gives no indication that plaintiff received any medical treatment during the 24-month period before he submitted answering papers to defendants' motions. We assume, as the dissent does, that there are limits to the amount of no-fault coverage for medical services such as physical therapy. The inquiry, however, does not end there. A bare assertion that insurance coverage for medically required treatment was exhausted is unavailing without any documentary evidence of such or, at least, an indication as to whether an injured claimant can afford to pay for the treatment out of his or her own funds (see e.g. Gomez v Ford Motor Credit Co., 10 Misc 3d 900, 903 [Sup Ct Bronx County 2005]; see also Salman v Rosario, 87 AD3d 482 [2011]; Jacobs v Rolon, 76 AD3d 905 [2010]). Plaintiff, who was employed and living with his parents, gave no such indication. Also, the dissent's theory that "[i]njuries are not always treatable by physical therapy" is speculative and finds no support in the record.

Barry v Arias, 2012 NY Slip Op 02606 (1st Dept., 2012)

Plaintiffs Danielle Barry and Cherlynn Reeves allege that they sustained serious injuries as a result of their car being rear-ended by defendants' livery cab in July 2008. Defendants made a prima facie showing that neither plaintiff sustained a permanent or significant injury by submitting the affirmed reports of a neurologist and orthopedist who, based upon examinations of plaintiffs in November 2009 and February 2010, found no neurological deficits and full ranges of motion in both plaintiffs' cervical and lumbar spines, and in Barry's right knee, and concluded that any alleged injuries had resolved. Further, the affirmed MRI reports of defendants' radiologist noted an absence of evidence of recent trauma or acute injuries to the spines (see Porter v Bajana, 82 AD3d 488 [2011]; Amamedi v Archibala, 70 AD3d 449, 449 [2010], lv denied 15 NY3d 713 [2010]). The physicians' failure to review plaintiffs' medical records does not require denial of defendants' motion, as the doctors detailed the objective tests they employed during the examinations to find full ranges of motion, and the radiologist's finding of absence of recent trauma was based on an independent review of the MRI films (see Canelo v Genolg Tr. Inc., 82 AD3d 584 [2011]; Clemmer v Drah Cab Corp., 74 AD3d 660, 660-661 [2010]; DeJesus v Paulino, 61 AD3d 605, 607 [2009]).

Neither plaintiff raised a triable issue of fact to defeat summary judgment, as none of their medical evidence was submitted in admissible form. Their radiologists' and physiatrist's reports were unaffirmed (see CPLR 2106; Lazu v Harlem Group, Inc., 89 AD3d 435 [2011]; Pinkhasov v Weaver, 57 AD3d 334 [2008]). Although their chiropractor affirmed his reports, reports of chiropractors must be subscribed before a notary or other authorized official (see Shinn v Catanzaro, 1 AD3d 195, 197-198 [2003]; see also CPLR 2106).

Jean-Louis v Gueye, 2012 NY Slip Op 02612 (1st Dept., 2012)

Defendants met their prima facie burden with respect to the permanent consequential and significant limitation categories by offering the affirmation of an orthopedic surgeon who found normal ranges of motion for plaintiff's cervical spine, lumbar spine, left and right hips, and left and right knees (see Insurance Law § 5102[d]; Toure v Avis Rent A Car Sys., 98 NY2d 345 [2002]). Plaintiff raised an issue of fact in opposition by submitting the MRI reports of her lumbar spine showing bulges at L4-5 and L5-S1, of her cervical spine showing disc bulges at C5-C6, and a grade II tear of the MCL of plaintiff's right knee, along with the affirmation of her orthopedic surgeon stating that such injuries were caused by the accident or had been exacerbated thereby, and that each of those body parts suffered losses in their range of motion as a result of the accident.

We reject defendants' argument that the affirmation of plaintiff's orthopedic surgeon is rendered speculative because of his failure to reconcile the notation made on plaintiff's emergency room records indicating a full range of motion of her cervical spine. Those records are unaffirmed, fail to indicate any objective instruments or criteria used to make such a finding, and fail to compare normal values (see Pommells v Perez, 4 NY3d 566, 573-574 [2005]; Rosa-Diaz v Maria Auto Corp., 79 AD3d 463, 464 [2010]; DeJesus v Paulino, 61 AD3d 605 [2009]). Further, contrary to defendants' arguments, plaintiff's orthopedic surgeon set forth an adequate basis for relating the accident as the cause of plaintiff's injuries or the exacerbation [*2]thereof (see Perl v Meher, 18 NY3d 208 [2011]). We also reject defendants' arguments pertaining to plaintiff's alleged gap in treatment because it is adequately explained by her orthopedic surgeon's finding that her improvement plateaued (see Pommells v Perez, 4 NY3d at 574; Mercado-Arif v Garcia, 74 AD3d 446 [2010]).

Martin v Kone, Inc., 2012 NY Slip Op 02564 (1st Dept., 2012)

In opposition, plaintiff failed to raise a triable issue of fact on the issue of actual or constructive notice. There was no evidence that the prior incidents identified in the work tickets "were of a similar nature to the accident giving rise to this lawsuit" or "were caused by the same or similar contributing factors" (Chunhye Kang-Kim v City of New York, 29 AD3d 57, 60-61 [2006]; see Levine v City of New York, 67 AD3d 510, 510-511 [2009]).

Plaintiff also failed to raise an issue of fact as to defendant's negligent maintenance since her expert's affidavit contained mere speculation, unsupported by any evidentiary foundation (see Diaz v New York Downtown Hosp., 99 NY2d 542, 544 [2002]). The expert failed to provide the results of his "examination" of the elevator and elevator room, or identify the basis for his conclusion that plaintiff's accident was caused by defendant's failure to maintain the elevator in accordance with industry standards.

However, defendant's witness testified that he did not know what type of detector edge was on the elevator or whether the detector edge had multiple beams in it. Thus, there was no [*2]evidence in the record that plaintiff had access to the mechanism that would cause the door to retract (see Gutierrez v Broad Fin. Ctr. LLC, 84 AD3d 648 [2011]; Ianotta v Tishman Speyer Props., Inc., (46 AD3d 297, 298 [2007]), Therefore, defendant is not entitled to summary judgment.

Callistro v Bebbington, 2012 NY Slip Op 02423 (1st Dept., 2012)

Contrary to the dissent's contention, neither Dr. Halbridge's nor Dr. Roseman's opinion raises a triable issue as to causation, since each fails to address how the claimed departures could have caused the claimed cognitive delays. Dr. Halbridge failed to rebut Dr. D'Alton's key assertion that the normal values for plaintiff's umbilical cord gas were "entirely inconsistent" with hypoxic injury. Dr. Halbridge did not dispute Dr. D'Alton's opinion that the gas test results completely ruled out hypoxia or the fact that the hospital record attributes the first (low) Apgar score to the nuchal cord. Rather, he ambiguously stated that "loss of beat to beat variability coupled with late decelerations . . . enhance[] the likelihood that the fetus is undergoing significant hypoxia" (emphasis supplied) and that "[t]his occurred in the present case, notwithstanding the normal umbilical cord blood gas values that were obtained." Dr. Halbridge's statement amounted to bare conjecture, which lacks the "reasonable degree of medical certainty" required in an expert affidavit in a medical malpractice case (see Burgos v Rateb, 64 AD3d 530, 530 [2009]). Moreover, Dr. Halbridge ignored Dr. D'Alton's further point that plaintiff's [*3]discharge three days after his birth disproved his claimed injury. Finally, Dr. Halbridge did not explain how the December 11 neurosonogram, which indicated "possible" hemorrhages, could show that the plaintiff suffered permanent brain damage, as Dr. Roseman concluded, since a follow-up neurosonogram performed one month later showed no evidence of hemorrhaging.

Dr. Roseman opined in conclusory fashion that the hypoxic-ischemic stress and other trauma that occurred during the delivery resulted in permanent brain damage, primarily to the neocortex, which in turn caused plaintiff's speech and language disorder. However, Dr. Roseman failed to support this opinion with a radiological study of plaintiff's brain or any other medical record demonstrating brain damage other than language delay. Dr. Roseman's assertions that "[t]here is nothing in [plaintiff's] medical history, other than the abnormal labor and delivery, that would account for his deficits in speech and language" and that the deficits resulted from his permanent brain damage are entirely conclusory. In fact, the record shows that plaintiff's cousins suffer from similar language deficits.

Duran v Kabir, 2012 NY Slip Op 02173 (1st Dept., 2012)

In opposition, plaintiff submitted the affirmed reports of her physicians, who found limitations in the range of motion of plaintiff's cervical and lumbar spine shortly after the accident and approximately two years later. Plaintiff also submitted the MRI reports of a radiologist, who noted disc bulges in both the cervical and lumbar spine. This evidence raises triable issues of fact as to whether plaintiff sustained a "significant limitation of use" and "permanent consequential limitation of use" of the cervical and lumbar spine (Insurance Law § 5102[d]; see Fuentes v Sanchez, 91 AD3d 418 [2012]). While the MRI reports are unsworn, they are admissible, as the reports and MRI films were reviewed by one of plaintiff's physicians and were incorporated into the findings of plaintiff's doctors (see Peluso v Janice Taxi Co., Inc., 77 AD3d 491, 492 [2010]). Plaintiff adequately explained the gap in treatment by submitting the affirmed report of a doctor, who opined that plaintiff had "reached an endpoint" in her physical therapy, and that there was no evidence that she was actively improving therefrom (see Mitchell v Calle, 90 AD3d 584, 585 [2011]).

Eve of trial SJ

3212(a)

Ovenseri v St. Barnabas Hosp., 2012 NY Slip Op 02601 (1st Dept., 2012)

Appeals from order, Supreme Court, Bronx County (Robert E. Torres, J.), entered March 15, 2011, which, among other things, stayed all proceedings in this action for 90 days pending a determination by the Workers' Compensation Board regarding plaintiff's status at the time of the alleged accident, and order, same court and Justice, entered July 19, 2011, which denied as moot defendant's motion to modify the order entered March 15, 2011 by, among other things, deleting the 90-day limit on the stay, unanimously dismissed, without costs, as moot. Order, same court and Justice, entered December 2, 2011, which, to the extent appealed from as limited by the briefs, denied defendant's motion to stay all proceedings in this action pending its appeal of the Board's determination, and thereupon denied its motion to dismiss the complaint, unanimously affirmed, without costs.

Plaintiff, a participant in an out-patient program conducted on premises under the control of defendant hospital, alleges that she was injured when she slipped on a wet floor while she was voluntarily assisting during the program's coffee break.

Defendant is not entitled to a stay of the proceedings in this action pending a determination of its appeal by the Board. Indeed, the matter should not have been referred to the Board, as defendant failed to raise the workers' compensation defense until its eve-of-trial application for a stay, after the time for making summary judgment motions had expired (see Shine v Duncan Petroleum Transport, Inc., 60 NY2d 22, 27-28 [1983]; Sangare v Edwards, 91 AD3d 513 [2012]). Nor should plaintiff's case be dismissed for her purported failure to timely file a workers' compensation claim. Defendant never raised this argument before the motion court, and it expressly waived the argument in its appeal of the Board's determination denying as time-barred any claim for workers' compensation benefits. 

Defendant's appeals from the orders entered March 15, 2011 and July 19, 2011 have been rendered moot by the Board's determination.

3117(a)(2) Use of Deposition at trial

CPLR R. 3117 Use of depositions

Novas v Zuckerman, 2012 NY Slip Op 02271 (1st Dept., 2012)

CPLR 3117(a)(2) provides that "so far as admissible under the rules of evidence," a party's deposition "may be used for any purpose by any party who was adversely affected when the deposition testimony was given or who is adversely interested when the deposition testimony is offered in evidence." However, although deposition testimony is generally admissible under CPLR 3117(a)(2), that section does not constitute an "absolute and unqualified right to use the deposition at any time during the course of trial" (Feldsberg v Nitschke, 49 NY2d 636, 643 [1980]). The trial court retains discretion concerning the admissibility of such evidence and its exercise of discretion "is not reviewable save for a clear abuse of discretion" id.

Here, the trial court providently exercised its discretion in denying plaintiff's application to introduce into evidence portions of Dr. Zuckerman's deposition testimony. The testimony at issue concerned the necessity of full-length and/or standing leg X rays to measure plaintiff's joint-line on his knee. Contrary to plaintiff's contention, the proffered testimony would not have rebutted the testimony of defendant's expert, who only testified as to the amount of femoral bone removed. The expert did not testify as to measuring the joint line, nor the type of X rays needed to measure the joint line. Moreover, the preclusion of the testimony was not prejudicial to plaintiff's case, since the testimony of defendant's expert was based on X rays that were already in evidence (see e.g. Gogatz v New York City Tr. Auth., 288 AD2d 115, 116 [2001]).