Author: DMG

An unsigned, but useful Deposition

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

Rodriguez v Ryder Truck, Inc., 2012 NY Slip Op 00769 (2nd Dept., 2012)

Contrary to the defendants' contentions, the unsigned but certified deposition of the plaintiff Juan Rodriguez, which was submitted in support of the plaintiffs' motion for summary judgment, was admissible under CPLR 3116(a), since the transcript was submitted by the party deponent himself and, therefore, was adopted as accurate by the deponent (see Ashif v Won Ok Lee, 57 AD3d 700). Additionally, although the plaintiffs initially failed to submit the certification page of the deposition of the defendant Derrick Thomas, they submitted it on reply in response to the defendants' arguments in opposition. Under the circumstances of this case, the late submission did not prejudice the defendants, and the Supreme Court should have considered the certification (see Mazzarelli v 54 Plus Realty Corp., 54 AD3d 1008; cf. Navarrete v A & V Pasta Prods., Inc., 32 AD3d 1003, 1004). Furthermore, although unsigned, as noted above, the transcript of Thomas's deposition was certified, and the defendants did not raise any challenges to its accuracy. Thus, it qualified as admissible evidence for purposes of the plaintiffs' motion for summary judgment (see Zalot v Zieba, 81 AD3d 935, 936; Bennett v Berger, 283 AD2d 374; Zabari v City of New York, 242 AD2d 15, 17). However, the uncertified and unsworn police report submitted by the plaintiffs in support of their motion was inadmissible (see Toussaint v Ferrara Bros. Cement Mixer, 33 AD3d 991, 992; Bates v Yasin, 13 AD3d 474; Lacagnino v Gonzalez, 306 AD2d 250).

Disqualificaiton

Trimarco v Data Treasury Corp., 2012 NY Slip Op 00360 (2nd Dept., 2012)

The advocate-witness rules contained in the Rules of Professional Conduct (see 22 NYCRR 1200.0), provide guidance, but are not binding authority, for the courts in determining whether a party's attorney should be disqualified during litigation (see S & S Hotel Ventures Ltd. Partnership v 777 S. H. Corp., 69 NY2d 437). Rule 3.7 of the Rules of Professional Conduct provides that, unless certain exceptions apply, "[a] lawyer shall not act as advocate before a tribunal in a matter in which the lawyer is likely to be a witness on a significant issue of fact" (Rules of Professional Conduct [22 NYCRR 1200.0] rule 3.7[a]; see Falk v Gallo, 73 AD3d 685). In order to disqualify counsel, a party moving for disqualification must demonstrate that (1) the testimony of the opposing party's counsel is necessary to his or her case, and (2) such testimony would be [*2]prejudicial to the opposing party (see S & S Hotel Ventures Ltd. Partnership v 777 S.H., 69 NY2d at 446; Daniel Gale Assoc., Inc. v George, 8 AD3d 608, 609).

Here, the plaintiff failed to demonstrate that the disqualification of Richard B. Friedman and his law firm, McKenna, Long & Aldridge, LLP, from representing the defendant in this action was warranted. There was no showing that Friedman's testimony was necessary, as there was no evidence that he had first-hand knowledge of material facts relevant to the case (cf. Falk v Gallo, 73 AD3d 685). Further, the plaintiff failed to demonstrate that Friedman's testimony would be prejudicial to the defendant. Accordingly, the Supreme Court improvidently exercised its discretion in granting that branch of the plaintiff's motion which was to disqualify Friedman and McKenna, Long & Aldridge, LLP, from representing the defendant in this action.

Priv

Ambac Assur. Corp. v DLJ Mtge. Capital, Inc., 2012 NY Slip Op 00827 (1st Dept., 2012)

Although the party challenging disclosure bears the burden of establishing that the information sought is immune from disclosure (see Spectrum Sys. Intl. Corp. v Chemical Bank, 78 NY2d 371, 376-377 [1991]), defendants here, as proponents of the motion, did not challenge [*2]the existence of a privilege until their reply. "[T]he function of a reply affidavit 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 the motion" (Ritt v Lenox Hill Hosp., 182 AD2d 560, 562 [1992]). Accordingly, the court erred in granting defendants' motion on burden grounds.

Furthermore, the " [a]t issue' waiver of privilege occurs where a party affirmatively places the subject matter of its own privileged communication at issue in litigation, so that invasion of the privilege is required to determine the validity of a claim or defense of the party asserting the privilege, and application of the privilege would deprive the adversary of vital information" (Deutsche Bank Trust Co. of Ams. v Tri-Links Inv. Trust, 43 AD3d 56, 63 [2007]). However, the fact "that a privileged communication contains information relevant to issues the parties are litigating does not, without more, place the contents of the privileged communication itself at issue' in the lawsuit" (id. at 64; see also Long Is. Light. Co. v Allianz Underwriters Ins. Co., 301 AD2d 23, 33 [2002]). Generally, no "at issue" waiver is found where the party asserting the privilege does not need the privileged documents to sustain its cause of action (see Deutsche Bank at 65).

Here, plaintiffs did not waive privilege by placing RMG's review of the loans "at issue." All references to the "third-party consultant" in their complaint could be stricken and it would still stand. Mention of a third-party consultant was not made as an element of the claim, but as a good-faith basis for the allegations made. Since plaintiffs do not "need the privileged documents to sustain [their] cause of action," they have not "waived the attorney-client privilege by injecting privileged materials into the lawsuit" (Manufacturers & Traders Trust Co. v Servotronics, Inc., 132 AD2d 392, 397 [1987]). Nor did plaintiffs waive the privilege by making a selective non-disclosure (see Carone v Venator Group, 289 AD2d 185 [2001]).

Blank Rome, LLP v Parrish, 2012 NY Slip Op 00655 (1st Dept., 2012)

Defendant agreed in the so-ordered stipulation that "any attorney-client privilege applicable to his communications with attorneys representing him is waived for the purposes of this action." By this clear and express provision, defendant waived his attorney-client privilege with respect to the privileged documents produced by Storch Amini to the extent the documents involve matters relevant to the claims and defenses in this action (see DLJ Mtge. Capital Corp., [*2]Inc. v Fairmont Funding, Ltd., 81 AD3d 563, [2011]; Vermont Teddy Bear Co. v 538 Madison Realty Co., 1 NY3d 470, 475 [2004]; Koren-DiResta Constr. Co. v New York City School Constr. Auth., 293 AD2d 189, 195 [2002]).

Soussis v Lazer, Aptheker, Rosella & Yedid, P.C., 2012 NY Slip Op 00357 (App. Div., 2nd 2012)

A waiver of the attorney-client privilege may be found where the client places the subject matter of the privileged communication in issue or where invasion of the privilege is required to determine the validity of the client's claim or defense and application of the privilege would deprive the adversary of vital information (see Hurrell-Harring v State of New York, 75 AD3d 667, 668; 601 Realty Corp. v Conway, Farrell, Curtin & Kelly, P.C., 74 AD3d 1179, 1179; Raphael v Clune White & Nelson, 146 AD2d 762, 763; Jakobleff v Cerrato, Sweeney & Cohn, 97 AD2d 834, 835). Moreover, a waiver may be found where a party engages in selective disclosure, "as a party may not rely on the protection of the privilege regarding damaging communications while disclosing other self-serving communications" (Village Bd. of Vil. of Pleasantville v Rattner, 130 AD2d 654, 655).

Contrary to the contention of the defendants third-party plaintiffs, under the circumstances presented, the plaintiff did not place the subject matter of the subject e-mail communications in issue and application of the privilege will not deprive them of vital information in defense of her claims. Nor is disclosure of the subject e-mails required under the doctrine of selective disclosure (cf. Orco Bank v Proteinas Del Pacifico, 179 AD2d 390, 390; Village Bd. of Vil. [*2]of Pleasantville v Rattner, 130 AD2d at 655). Accordingly, the Supreme Court properly denied the motion of the defendants third-party plaintiffs to compel the third-party defendant to produce certain e-mail communications withheld from disclosure on the ground that they were protected by the attorney-client privilege.

CPLR 4545 and 4547

CPLR § 4545 Admissibility of collateral source of payment

CPLR § 4547 Compromise and offers to compromise

Casa Redimix Concrete Corp. v Westway Indus. Inc., 2012 NY Slip Op 00407 (1st Dept., 2012)

In addition, plaintiff presented documentary evidence that its specific claim was presented to the surety by Hunts Point in the reformation action. It may be, as Hunts Point's general manager claimed, that this documentation was "merely a tabulation by Hunts Point, as project owner, of the various claims by Westway subs and suppliers that had been made or payments that were outstanding at the time." However, in light of inferences drawn in plaintiff's favor, this fact suggests that plaintiff's claim was at issue in the reformation action. The motion court improperly refused to consider this evidence, since nothing in the record establishes that it is inadmissible under CPLR 4547.

Turuseta v Wyassup-Laurel Glen Corp., 2012 NY Slip Op 00202 (2nd Dept., 2012)

CPLR 4545(a) provides, in relevant part, that "[a]ny collateral source deduction required by this subdivision shall be made by the trial court after the rendering of the jury's verdict." [*2]The statute, by its terms, does not specify the procedures to be employed by the trial court in making the appropriate deductions, and does not specify a time limit within which a defendant may request a hearing to determine the appropriate amount of the deductions. "[A]n application for a collateral source hearing may be timely made at any time before the judgment is entered, unless the court directs otherwise" (Firmes v Chase Manhattan Auto. Fin. Corp., 50 AD3d 18, 32). Here, the defendants established that a collateral source hearing was warranted by tendering "some competent evidence from available sources that the plaintiff's economic losses may in the past have been, or may in the future be, replaced, or the plaintiff indemnified, by collateral sources" (id. at 36; see Nunez v City of New York, 85 AD3d 885, 887-888). In addition, the time limit imposed by the Supreme Court for posttrial motions was clearly meant to encompass motions to set aside the verdict pursuant to CPLR 4404(a), as those types of motions are generally required to be made no later than 15 days after the verdict (see CPLR 4405; cf. Firmes v Chase Manhattan Auto. Fin. Corp., 50 AD3d at 32). Moreover, since "[i]t appears that [the plaintiff's] efforts to enter a judgment may have been undertaken, at least in part, to circumvent potential collateral source setoffs" (Firmes v Chase Manhattan Auto. Fin. Corp., 50 AD3d at 32), in light of the fact that entry of judgment was effected without notice while the defendants' CPLR 4404(a) motion to set aside the verdict was pending, the Supreme Court providently exercised its discretion in granting the defendants' motion for a collateral source hearing despite the fact that judgment had already been entered.

Discovery

Denver Employees Retirement Plan v JPMorgan Chase Bank, N.A., 2012 NY Slip Op 00639 (1st Dept., 2012)

The motion court providently exercised its discretion by refusing to compel plaintiff to respond to an untimely document request for "All Documents Concerning investments by or for the benefit of [plaintiff], direct or indirect, in securities issued by Lehman" (see Kingsgate Assoc. v Advest, Inc., 208 AD2d 356, 357 [1994]). The circumstances presented herein do not warrant exercise of our own independent discretion to reverse this order.

Likewise, we find no reason to disturb the exercise of the court's "broad discretion" in denying defendant's deposition notice (see Brooklyn Union Gas Co. v American Home Assurance Co., 23 AD3d 190, 190 [2007]). This notice called for the production of "a person designated by [plaintiff] regarding any and all investments in securities issued or guaranteed by Lehman . . . that were purchased, held, and/or sold by or for the benefit of [plaintiff] from January 1, 2007 to September 30, 2008, excluding investments made through the JPMorgan Securities Lending Program," i.e., the program at issue in this litigation. Defendant essentially attempted to obtain the same material that the court previously found to be untimely and irrelevant. Plaintiff's litigation concerns investments with defendant in Lehman medium term notes (MTNs). Defendant seeks information about plaintiff's investments in other Lehman securities that plaintiff made at different times and that are unrelated to the MTNs. The court correctly determined that investment decisions concerning other, unrelated investments [*2]purchased for different accounts that have different investment goals, are not relevant to the account in question (cf. Matter of Clark, 257 NY 132, 135 [1931]).

VOOM HD Holdings LLC v EchoStar Satellite L.L.C., 2012 NY Slip Op 00658 (1st Dept., 2012)

This case requires us to determine the scope of a party's duties in the electronic discovery context, and the appropriate sanction for failure to preserve electronically stored information (ESI). We hold that in deciding these questions, the motion court properly invoked the standard for preservation set forth in Zubulake v UBS Warburg LLC (220 FRD 212 [SD NY 2003]; Pension Comm. of the Univ. of Montreal Pension Plan v Banc of Am. Sec., LLC., 685 F Supp 2d 456, 473 [SD NY 2010]), which has been widely adopted by federal and state courts. In Zubulake, the federal district court stated, "Once a party reasonably anticipates litigation, it must suspend its routine document retention/destruction policy and put in place a litigation hold' to ensure the preservation of relevant documents" (Zubulake, 220 FRD at 218). The Zubulake standard is harmonious with New York precedent in the traditional discovery context, and provides li tigants with sufficient certainty as to the nature of their obligations in the electronic discovery context and when those obligations are triggered.

W & W Glass Sys., Inc. v Admiral Ins. Co., 2012 NY Slip Op 00307 (1st Dept., 2012)

Defendants' argument that further discovery is warranted and that the motion is therefore premature, is unavailing. Defendants participated in lengthy discovery in the underlying action. Admiral had all of the relevant policies of insurance and had ample opportunity to gather evidence.

No proof was offered demonstrating that wrap-up coverage may have been in effect, and Admiral's bare affirmation raising speculative defenses is insufficient to defeat a prima facie showing of entitlement to summary judgment (see Gilbert Frank Corp. v Federal Ins. Co., 70 NY2d 966 [1988]). Defendants cannot avoid summary judgment based on speculation that further discovery may uncover something.

 

5015 and Defaults

Pichardo-Garcia v Josephine's Spa Corp., 2012 NY Slip Op 00004 (1st Dept., 2012)

In the absence of a determination by the motion court, pursuant to CPLR 5015(a)(1), of the reasonableness of plaintiff's proffered excuse for her failure to appear at a scheduled compliance conference, we reject the claim of law office failure as "conclusory and perfunctory" (see Perez v New York City Hous. Auth., 47 AD3d 505, 505 [2008]). Counsel explained that the failure to appear was due to a conflict between scheduled appearances in this action and in an unrelated action. However, he did not state that he took any steps to resolve or alleviate the conflict or that he was unaware of the conflict. Counsel's "overbooking of cases and inability to keep track of his appearances" does not constitute a reasonable excuse for the failure to appear (id.; see also Youni Gems Corp. v Bassco Creations Inc., 70 AD3d 454, 455 [2010], lv dismissed 15 NY3d 863 [2010]). Moreover, plaintiff made no attempt to vacate the default until almost a year after being served with the notice of its entry (see Youni, 70 AD3d at 455).

Kohn v Tri-State Hardwoods, Ltd., 2012 NY Slip Op 00933 (2nd Dept., 2012)

It is undisputed that the plaintiff defaulted in serving a reply to the appellant's counterclaim and that the appellant failed to move for leave to enter a default judgment on the counterclaim within one year after the default. Since the appellant failed to make a timely motion for leave to enter a default judgment, it was required to demonstrate a reasonable excuse for its delay in seeking a default judgment and a potentially meritorious claim (see Giglio v NTIMP, Inc., 86 AD3d 301, 308; Costello v Reilly, 36 AD3d 581; Iorizzo v Mattikow, 25 AD3d 762, 763; Oparaji v Madison Queens-Guy Brewer, 293 AD2d 591, 592). The appellant failed to demonstrate a reasonable excuse for its delay of over two years after the one-year statutory time period had expired (see Butindaro v Grinberg, 57 AD3d 932, 933; Mattera v Capric, 54 AD3d 827, 828; Lugauer v Forest City Ratner Co., 44 AD3d 829, 830; Opia v Chukwu, 278 AD2d 394). Accordingly, the appellant's motion for leave to enter a default judgment on the counterclaim was properly denied.

2261 Palmer Ave. Corp. v Malick, 2012 NY Slip Op 00506 (2nd Dept., 2012)

In order to vacate her default in appearing or answering the complaint, the defendant was required to demonstrate both a reasonable excuse for the default and the existence of a potentially meritorious defense to the action (see CPLR 5015[a][1]; Bank of Am. v Faracco, 89 AD3d 879; Community Preserv. Corp. v Bridgewater Condominiums, LLC, 89 AD3d 784; see also Swensen v MV Transp., Inc., 89 AD3d 924). Even if the defendant demonstrated a reasonable excuse for her default, our review of the record establishes that she failed to demonstrate a potentially meritorious defense to the action. The papers submitted in support of her cross motion, inter alia, to vacate her default in appearing or answering the compalint were replete with self-serving, vague, and unsubstantiated denials and unsupported legal conclusions as to whether a potentially meritorious defense to the action existed, and were thus an insufficient basis for vacating her default (see Thapt v Lutheran Med. Ctr., 89 AD3d 837; Garal Wholesalers, Ltd. v Raven Brands, Inc., 82 AD3d 1041).

Accordingly, the Supreme Court properly granted that branch of the plaintiff's motion which was pursuant to CPLR 3215 for leave to enter a default judgment, and properly denied that branch of the defendant's cross motion which was to vacate her default in appearing or answering the complaint.

Toll Bros., Inc. v Dorsch, 2012 NY Slip Op 00359 (2nd Dept., 2012)

"A defendant seeking to vacate a default pursuant to CPLR 5015(a)(1) must demonstrate both a reasonable excuse for the default and a potentially meritorious defense to the action" (Clover M. Barrett, P.C. v Gordon,AD3d, 2011 NY Slip Op 09581, *1 [2d Dept 2011]; see Development Strategies Co., LLC, Profit Sharing Plan v Astoria Equities, Inc., 71 AD3d 628). "Other factors which the court should consider include whether the default prejudiced the opposing party, whether it was willful or evinced an intent to abandon the litigation, and whether vacating the default would serve the strong public policy of resolving cases on their merits when possible" (Dimitriadis v Visiting Nurse Serv. of N.Y., 84 AD3d 1150, 1150-1151; see U.S. Bank, N.A. v Dick, 67 AD3d 900, 902; Moore v Day, 55 AD3d 803, 804).

Here, the defendant established both a reasonable excuse for the default, and the [*2]existence of a potentially meritorious defense to the action. Further, there was no showing by the plaintiff that it was prejudiced by the default or that the default was willful, and public policy favors the resolution of cases on their merits (see Dimitriadis v Visiting Nurse Serv. of N.Y., 84 AD3d at 1151; Moore v Day, 55 AD3d at 805; Li Gang Ma v Hong Guang Hu, 54 AD3d 312, 313; Ahmad v Aniolowiski, 28 AD3d 692, 693). Accordingly, under the circumstances of this case, the Supreme Court improvidently exercised its discretion in denying that branch of the defendant's motion which was pursuant to CPLR 5015(a)(1) to vacate his default.

Properly mistaken venue

CPLR § 510 Grounds for change of place of trial

 CPLR R. 511 Change of place of trial

Astillero v Abramov, 2012 NY Slip Op 00736 (1st Dept., 2012)

Plaintiff initially chose an improper venue in New York County. However, plaintiff selected this venue based on Department of Motor Vehicle records, which indicated that defendant Asia Abramov resided in New York County. Defendant Abramov had recently moved to Queens County, but failed to notify the Department of Motor Vehicle as required by VTL § 505(5). Under these circumstances, plaintiff did not forfeit her right to choose a venue by her initial choice of a venue that turned out to be improper (see Vasquez v Sonin, 259 AD2d 340, 341 [1999]).

 

Pleadings = liberally construed (CPLR 3026)

CPLR § 3026 Construction

Shamieka B. v Lishomwa H., 2012 NY Slip Op 00842 (1st Dept., 2012)

There was no evidence that the father was prejudiced by the inclusion of arrears from an earlier time period in that the petition advised that the petitioner may amend to include additional arrears, and pleadings are to be liberally construed (CPLR 3026).

Not a business record: CPLR 4518 and a DVD

CPLR R. 4518 Business records

Lambert v Sklar, 2012 NY Slip Op 00755 (2nd Dept., 2012)

In opposition, the plaintiffs failed to raise a triable issue of fact. According to the deposition testimony of the decedent's widow, which was submitted by the defendants, she did not know the purpose of the payments identified in the check register. Moreover, even if the check register were the decedent's, it was inadmissible as a business record (see CPLR 4518[a]), and incompetent to prove that the corresponding checks were loans, rather than repayments of advances (see Matter of Roge v Valentine, 280 NY 268; Leask v Hoagland, 205 NY 171; Nappi v Gerdts, 103 AD2d 737; Shea v McKeon, 264 App Div 573; Bogatin v Brader, 243 App Div 856; Matter of Levi, 3 Misc 2d 746; In re Purdy's Will, 73 NYS2d 38 [Sur Ct 1947]; see also Nay v Curley, 113 NY 575, 577; Koehler v Adler, 78 NY 287). Given the plaintiffs failure to set forth admissible evidence raising a triable issue of fact as to whether the defendants made any material misrepresentations to the public administrator, the Supreme Court properly granted the defendants' motion for summary judgment, in effect, dismissing the cause of action alleging fraud, and, in effect, properly denied the plaintiffs' cross-motion for summary judgment, in effect, on the cause of action alleging fraud.

National Ctr. for Crisis Mgt., Inc. v Lerner, 2012 NY Slip Op 00758 (2nd Dept., 2012)

Additionally, the Supreme Court properly declined to consider a DVD recording submitted by the defendant in support of her motion for summary judgment, as it cannot be concluded that the video recording truly and accurately represented what the defendant purported it to show (see Zegarelli v Hughes, 3 NY3d 64, 69; see also People v Patterson, 93 NY2d 80, 85; cf. People v Byrnes, 33 NY2d 343, 349).

CPLR 8404 (Taxed or re-taxed)

CPLR § 8404 Judicial review of taxation or retaxation

S.P.Q.R. Co., Inc. v United Rockland Holding Co., Inc., 2012 NY Slip Op 00770 (2nd Dept., 2012)

The appeal from so much of the judgment as awarded disbursements to the defendants pursuant to CPLR 8301 in the sum of $2,052.28 must be dismissed, since the plaintiff failed to move for retaxation of costs before the Supreme Court pursuant to CPLR 8404 (see Geller v Farber, 250 [*2]AD2d 808; Matter of Verga v Scaduto, 99 AD2d 534; Smith v Incorporated Vil. of Patchogue, 285 App Div 1190).