Author: DMG

Severed: CPLR 603 and 1010

CPLR § 603 Severance and separate trials

CPLR R. 1010 Dismissal or separate trial of third-party complaint

Moy v St. Vincent's Hosp. & Med. Ctr. of N.Y., 2012 NY Slip Op 00941 (2nd Dept., 2012)

The plaintiff commenced this action, inter alia, to recover damages for medical malpractice against the defendants St. Vincent's Hospital and Medical Center of New York (hereinafter the hospital) and Michael G. Wayne, a physician. The hospital subsequently commenced chapter 11 bankruptcy proceedings, resulting in an automatic stay pursuant to 11 USC 362(a) of the continuation of any action or proceeding against the hospital.

"It has been generally held that the balance of the equities lies with plaintiffs when one defendant has received an automatic stay pursuant to 11 USC § 362(a) . . . and codefendants request a stay of the entire action'" (Rosenbaum v Dane & Murphy, 189 AD2d 760, 761, quoting Lottes v Slater, 114 AD2d 580, 581; see Rapini v New Plan Excel Realty Trust, Inc., 8 AD3d 1013, 1014). Here, as the prejudice to the plaintiff in being required to await the conclusion of the bankruptcy proceeding before obtaining any remedy outweighs any potential inconvenience to the defendants, the Supreme Court improvidently exercised its discretion in denying the plaintiff's motion pursuant to CPLR 603 to sever the causes of action asserted against Wayne from the causes of action asserted against the hospital (see Weber v Baccarat, Inc., 70 AD3d 487, 488; Kharmah v [*2]Metropolitan Chiropractic Ctr., 288 AD2d 94; Golden v Moscowitz, 194 AD2d 385, 386; Rosenbaum v Dane & Murphy, 189 AD2d at 761). However, as Wayne correctly contends, equity requires that the defendants have the benefit of their rights under CPLR article 16, such that if their culpability is 50% or less, their exposure for economic damages should be limited proportionately to their share of fault (see CPLR 1601[1]; Karmah v Metropolitan Chiropractic Ctr., 288 AD2d at 94-95).

Accordingly, the order appealed from must be reversed, and the plaintiff's motion pursuant to CPLR 603 to sever the causes of action asserted against Wayne from the causes of action asserted against the hospital is granted, subject to the preservation of the defendants' equitable share allocation rights pursuant to CPLR article 16.

Whippoorwill Hills Homeowners Assn., Inc. v Toll at Whippoorwill, L.P., 2012 NY Slip Op 00511 (2nd Dept., 2012)

Under the circumstances of this case, the Supreme Court did not improvidently exercise its discretion in directing the severance of the third-party actions at issue from the main action. Severance will avoid undue delay in the main action, which was commenced more than four years ago and has been certified ready for trial, and will avoid prejudice to the third-party defendants, who have not had an adequate opportunity to complete discovery (see CPLR 1010; Meczkowski v E.W. Howell Co., Inc., 63 AD3d 803, 804; Abreo v Baez, 29 AD3d 833, 834; Wassel v Niagara Mohawk Power Corp., 307 AD2d 752; Singh v City of New York, 294 AD2d 422, 423).

1012/1013–Intervention

CPLR § 1012 Intervention as of right; notice to attorney-general, city, county, town or village where constitutionality in issue

CPLR § 1013 Intervention by permission

Matter of Rapoport, 2012 NY Slip Op 00252 (1st Dept., 2012)

The Surrogate properly denied the proposed intervenors' request to intervene in the reformation proceeding regarding the testator's will. The proposed intervenors are not named in the will — a fact that they concede — and cannot fulfill the requirement under CPLR 1012 that the judgment may adversely affect their interests (see Matter of Vaughn, 267 AD2d 763, 763-64 [1999]; Matter of Flemm, 85 Misc 2d 855, 857 [1975]). Indeed, the proposed intervenors base their argument in favor of intervention on the occurrence of a contingent event that might or [*2]might not occur at an indeterminate time in the future. The distribution, if any, would rest in the executors' sole discretion. Thus, the proposed intervenors have no standing to intervene (see Matter of May, 213 AD2d 838, 839 [1995], lv dismissed 85 NY2d 1032 [1995]).

 

 American Home Mtge. Servicing, Inc. v Sharrocks, 2012 NY Slip Op 00918 (2nd Dept, 2012)

Whether intervention is sought as a matter of right under CPLR 1012(a), or as a matter of discretion under CPLR 1013, is of little practical significance since a timely motion for leave to intervene should be granted, in either event, where the intervenor has a real and substantial interest in the outcome of the proceedings" (Wells Fargo Bank, N.A. v McLean, 70 AD3d at 676- 677; see Berkoski v Board of Trustees of Inc. Vil. of Southampton, 67 AD3d 840, 843; Sieger v Sieger, 297 AD2d 33, 35-36; Perl v Aspromonte Realty Corp., 143 AD2d 824). In light of our determination that intervention was warranted pursuant to CPLR 1013, we need not determine whether intervention should have been permitted as of right under CPLR 1012(a).

A motion to consolidate two or more actions rests within the sound discretion of the trial court (see CPLR 602; Matter of Long Is. Indus. Group v Board of Assessors, 72 AD3d 1090, 1091; North Side Sav. Bank v Nyack Waterfront Assoc., 203 AD2d 439). Where common questions of law or fact exist, consolidation is warranted unless the opposing party demonstrates prejudice to a substantial right (see Alizio v Perpignano, 78 AD3d 1087, 1088; Pierre-Louis v DeLonghi Am., Inc., 66 AD3d 855, 856; Glussi v Fortunre Brands, 276 AD2d 586).

***

In light of our determination consolidating the mortgage foreclosure action and the fraudulent conveyance action, the Supreme Court is now obligated to determine the allegations of [*3]fraudulent conveyance before entering any judgment in the consolidated action, including any judgment of foreclosure and sale, if warranted. Hence, there is no need to stay the foreclosure and sale pending resolution of the fraudulent conveyance action, and that branch of the appellant's motion which was for such a stay must be denied as unnecessary.

Breslin Realty Dev. Corp. v Shaw, 2012 NY Slip Op 00478 (2nd Dept., 2012)

We agree with the plaintiffs' contention that the motion of Ronald Pecunies for leave to intervene in this action as a party plaintiff should have been denied in its entirety. By the time Pecunies filed the motion, the litigating parties had already entered into a stipulation of settlement and this action was discontinued. Further, Pecunies was aware of this action from its inception, yet chose not to participate. Under these circumstances, there was no pending action in which to intervene, and the motion should have been denied in its entirety by the Supreme Court (see CPLR 1012, 1013; Carnrike v Youngs, 70 AD3d 1146; Rectory Realty Assoc. v Town of Southampton, 151 AD2d 737; 176 E. 123rd St. Corp. v Frangen, 67 Misc 2d 281).

Equitable Estoppel

Khela v City of New York, 2012 NY Slip Op 00753 (2nd Dept., 2012)

The Supreme Court erred in concluding that the defendants were equitably estopped from asserting the plaintiff's failure to serve a timely notice of claim upon the correct public entity. " The doctrine of equitable estoppel is to be invoked sparingly and only under exceptional circumstances'" (Ceely v New York City Health & Hosps. Corp., 162 AD2d 492, 493, quoting Matter of Gross v New York City Health & Hosps. Corp., 122 AD2d 793, 794). " [E]stoppel against a municipal defendant will lie only when the municipal defendant's conduct was calculated to, or negligently did, mislead or discourage a party from serving a timely notice of claim and when that conduct was justifiably relied upon by that party'" (Mohl v Town of Riverhead, 62 AD3d 969, 970, quoting Wade v New York City Health & Hosps. Corp., 16 AD3d 677, 677). Contrary to the plaintiff's contentions, the fact that the defendants may have conducted an examination pursuant to General Municipal Law § 50-h prior to making their motion to dismiss does not justify a finding of estoppel (see Dier v Suffolk County Water Auth., 84 AD3d 861, 862). Moreover, the defendants were under no duty to raise the failure to serve a timely notice of claim upon the proper entity as an affirmative defense in their answer (see Macias v City of New York, 201 AD2d 541; Ceely v New York City Health & Hosps. Corp., 162 AD2d at 493-494). There is no evidence in the record demonstrating that the defendants engaged in any misleading conduct which would support a finding of equitable estoppel (see Maxwell v City of New York, 29 AD3d at 541; Wade v New York City Health & Hosps. Corp., 16 AD3d at 677; Ceely v New York City Health & Hosps. Corp., 162 AD2d at 493).

No Sua Sponte

Gosine v Sahabir, 2012 NY Slip Op 00751 (2nd Dept., 2012)

The Supreme Court improvidently exercised its discretion in, sua sponte, appointing a receiver to operate the business affairs of Sanatan Dharma Maha Sabha of the West Indies, Inc. (hereinafter SDMS), until an upcoming election of the board of trustees, since no party asked for that relief, and there was no evidence that SDMS's assets were susceptible to waste or that such a drastic remedy was warranted (see Quick v Quick, 69 AD3d 828; Ugiri Progressive Community, Inc. v Ukwuozo, 57 AD3d 656; Vardaris Tech, Inc. v Paleros Inc., 49 AD3d 631, 632; Natoli v Milazzo, 35 AD3d 823; Rotary Watches [USA] v Greene, 266 AD2d 527; Schachner v Sikowitz, 94 AD2d 709).

The Supreme Court erred in granting the plaintiffs' motion, inter alia, to confirm the results of the election purportedly conducted on December 3, 2010. The record establishes that the receiver adjourned the meeting prior to opening the polls. While the minutes of the meeting indicate that the plaintiff Vena Gosine collected ballots after the meeting was adjourned, she was not a presiding officer authorized to "receive the votes, judge the qualifications of the voters, and declare the results of the votes cast" under SDMS's constitution. Accordingly, the plaintiffs' motion, among other things, to confirm the results of the purported election should have been denied.

Since the Supreme Court considered neither the defendants' motion to disqualify the plaintiffs' counsel, nor their cross motion pursuant to 22 NYCRR 130—1.1 to impose sanctions on the plaintiffs and their attorney, on the merits, we must remit the matter to the Supreme Court, Queens County, for determination of the motion and cross motion (see Hunter Sports Shooting Grounds, Inc. v Foley, 73 AD3d 702). Under the circumstances of this case, we deem it appropriate to remit the matter to the Supreme Court, Queens County, for further proceedings before a different Justice.

Mighty Midgets

Farm Family Cas. Ins. Co. v Habitat Revival, LLC, 2012 NY Slip Op 00749 (2nd Dept., 2012)

"[A]n insured who is cast in a defensive posture by the legal steps an insurer takes in an effort to free itself from its policy obligations,' and who prevails on the merits, may recover an attorney's fee incurred in defending against the insurer's action" (Insurance Co. of Greater N.Y. v Clermont Armory, LLC, 84 AD3d 1168, 1171, quoting U.S. Underwriters Ins. Co. v City Club Hotel, LLC, 3 NY3d 592, 598 [internal quotation marks omitted]; see Mighty Midgets v Centennial Ins. Co., 47 NY2d 12, 21; Johnson v General Mut. Ins. Co., 24 NY2d 42). " It is well settled that [*3]an insurer's responsibility to defend reaches the defense of any actions arising out of the occurrence, and defense expenses are recoverable by the insured, including those incurred in defending against an insurer seeking to avoid coverage for a particular claim'" (RLI Ins. Co. v Smiedala, 77 AD3d 1293, 1294-1295, quoting National Grange Mut. Ins. Co. v T.C. Concrete Constr., Inc., 43 AD3d 1321, 1322 [internal quotation marks omitted]). "Moreover, an insured who prevails in an action brought by an insurance company seeking a declaratory judgment that it has no duty to defend or indemnify the insured may recover attorneys' fees regardless of whether the insurer provided a defense to the insured'" (RLI Ins. Co. v Smiedala, 77 AD3d at 1295, quoting U.S. Underwriters Ins. Co. v City Club Hotel, LLC, 3 NY3d at 598 ).

Since the defendants are entitled to a declaration that the plaintiff is obligated to defend and indemnify Habitat and Pintado in the underlying action, they may recover attorneys' fees incurred in defending this action (see Insurance Co. of Greater N.Y. v Clermont Armory, LLC, 84 AD3d at 1171). Accordingly, the Supreme Court should have granted that branch of the defendants' motion which was for a hearing on the issue of attorneys' fees, and we remit the matter to the Supreme Court, Putnam County, for a hearing to determine the amount of the award of the attorneys' fees.

2103

CPLR R. 2103 Service of papers

Simon v Usher, 2011 NY Slip Op 07305 (2011)

The question presented for our review is whether the five-day extension under CPLR 2103(b)(2) applies to the 15-day time period prescribed by CPLR 511(b) to move for change of venue when a defendant serves its demand for change of venue by mail. We hold that it does.

On July 17, 2009, plaintiffs Allen and Barbara Simon commenced this medical malpractice action against defendants in Supreme Court, Bronx County. Defendants Sol M. Usher, Sol M. Usher, M.D., Maxwell M. Chait, White Plains Hospital Center and Hartsdale Medical Group, P.C., (collectively, the Usher defendants) served their verified answers and demands to change venue to Westchester County on August 20, 2009. Twenty days later, on September 9th, the Usher defendants moved to change venue to Westchester County on the grounds that, except for Usher and Usher, M.D., P.C., all of the defendants and the plaintiffs reside in Westchester County; Usher's and Usher, M.D., P.C.'s primary offices are in Westchester County; and plaintiff Allen Simon received the medical care at issue in Westchester County. The remaining defendants Sheldon Alter, Mid-Westchester Medical Associates, LLP, Westchester Medical Group, P.C. and Marianne Monahan served their answer on September 3rd and filed an affirmation in support of the motion to change venue on September 15th.

Supreme Court granted the motion to change venue to Westchester because "none of the parties to this action reside in Bronx County." The Appellate Division unanimously reversed and denied the motion. The court, among other things, rejected the Usher defendants' motion for a change of venue as untimely because it was made 20 days after service of the demand. It concluded that CPLR 2103(b)(2)'s five-day extension for time periods measured from service by mail did not apply to CPLR 511. The Appellate Division granted the Usher defendants leave to appeal to this Court and certified the following question for review: "Was the order of this court, which reversed the order of the Supreme Court, properly made?" We answer the certified question in the negative and now reverse.

When construing a statute, we must begin with the language of the statute and "give effect to its plain meaning" (Kramer v Phoenix Life Ins. Co., 15 NY3d 539, 552 [2010]). Pursuant to CPLR 511(a), a defendant shall serve with the answer, or prior to service of the answer, a demand "for change of place of trial on the ground that the county designated for that purpose is not a proper county." Subsection (b) permits defendant to "move to change the place of trial within fifteen days after service of the demand, unless within five days after such service plaintiff serves a written consent to change the place of trial to that specified by the defendant." CPLR 2103 provides "where a period of time prescribed by law is measured from the service of a paper and service is by mail, five days shall be added to the prescribed period." "The extension provided in CPLR 2103(b)(2) constitutes legislative recognition of and compensation for delays inherent in mail delivery" (Sultana v Nassau Hosp., 188 AD2d 627 [2d Dept 1992]).

Here, defendants who served their motion papers by mail 20 days after they served their demand to change venue are entitled to a five-day extension of the 15-day period prescribed in CPLR 511(2). Plaintiffs, citing Sultana, contend that defendants cannot rely upon section 2103(b)(2) for the five-day extension because the motion did not constitute response papers. Section 2103(b) contains no language restricting its application to instances where a party is responding to papers served by an adversary. Moreover, defendants are permitted to move to change venue only in the event that plaintiffs do not consent in writing within five days after service of the demand. Although the motion papers are not directly responding to papers served by plaintiffs, defendants are effectively responding to plaintiffs' lack of consent to the change of venue. Simply put, defendants' motion papers are not initiatory and, because the demand was served by mail, defendants were entitled to the benefit of section 2103(b)(2)'s five-day extension.

Accordingly, the order of the Appellate Division should be reversed, with costs, and the case remitted to that court for consideration of issues raised but not determined on the appeal to that court, and the certified question answered in the negative.

PIGOTT, J. (dissenting):

While I fear adding further confusion to what, up until now, seemed to be a fairly simple statute, I respectfully dissent from the judicial creation of what I will label an "anticipatory five-day rule" amending CPLR § 2103 (b) (2).

On July 17, 2009, plaintiffs commenced this medical malpractice action against multiple defendants by filing their summons and complaint in Supreme Court, Bronx County, basing their choice of venue on the fact that defendant Sol M. Usher had a place of business in the Bronx. Defendants answered by mail on August 20, 2009 and, pursuant to CPLR § 511 (b), simultaneously served a demand for a change of venue from Bronx County to Westchester County. Plaintiffs did not respond within five days after the date of service of the demand, i.e. by August 25, 2009. This permitted defendants, if they so chose, to move to change the place of trial by filing a motion in either Bronx or Westchester County on or before September 4, 2009. However, defendants' motion was served by mail on September 9, 2009.

Plaintiffs objected, and I think properly so, that the motion was untimely, under CPLR 511 (b), which provides that a defendant that has served a written demand for a change of venue "may move to change the place of trial within fifteen days after service of the demand, unless within five days after such service plaintiff serves a written consent" (emphasis added). Defendants enlisted CPLR 2103 (b) (2), to argue that their motion was timely because it was served within twenty days of service of their demand, despite the fact that CPLR § 511 specifies fifteen days. Supreme Court, Bronx County, granted defendants' motion to change the venue, but the Appellate Division reversed, and denied the motion, holding that defendants "were not entitled to the five-day extension in CPLR 2103 (b) (2) for time periods measured from service by mail" (73 AD3d 415 [1st Dept 2010]).

Under CPLR 2103 (b) (2), the statute being mangled here, "where a period of time prescribed by law is measured from the service of a paper and service is by mail, five days shall be added to the prescribed period." The legislative history of the statute makes it abundantly clear that its purpose is to give a party, on whom a paper has been served by mail, additional time to respond, because of the delays inherent in mailing. The five-day extension was created in the early 1980s (L 1982, ch 20, § 1, effective January 1, 1983); it had been three days before. At that time, the Advisory Committee on Civil Practice clearly described the extension as applying to a party's "responding time" or "responding period" (1982 Report of the Advisory Committee on Civil Practice to the Chief Administrator of the Courts of the State of New York, 1982 McKinney's Session Laws of NY, at 2651). The Committee wrote that "[t]he traditional three days by which a responding period is extended when the paper to be responded to is served by mail has proved too short in recent years, as the mails have been increasingly delayed" (id. at 2651-2652 [emphasis added]). The legislative intent could not be more obvious. The purpose of CPLR 2103 (b) (2) was to compensate for mail delays, and allow an adverse party more time to assemble responsive papers.

The Appellate Division has understood this, writing that "[t]he extension provided in CPLR 2103 (b) (2) constitutes legislative recognition of and compensation for delays inherent in mail delivery" (Sultana v Nassau Hosp., 188 AD2d 647 [2d Dept 1992], quoting Corradetti v Dales Used Cars, 102 AD2d 272, 273 [3d Dept 1984]) and "does not benefit the party making the service by mail" (Thompson v Cuadrado, 277 AD2d 151, 152 [1st Dept 2000]; see also Harvey v New York State Dep't of Envtl. Conservation, 235 AD2d 625 [3d Dept 1997]). Consistently, Professor Siegel, recognizing the intent of CPLR 2103, has noted that the statute "provides that whenever a period of time is measured from the service of a paper and the paper is served by mail, the party required to take the responsive step gets 5 additional days. This recognizes that the service was deemed complete upon posting and it compensates for the delay in mail delivery. . . . The 5 days are added to the stated period when any mail-served paper requires a responsive step within a stated period" (Siegel, NY Prac § 202, at 346 [5th ed] [emphases added]).

It is noteworthy that the Legislature, in the context of measuring time from the service of a judgment or order, has taken the trouble to add a provision that clarifies that "[w]here service of the judgment or order to be appealed from and written notice of its entry is made by mail . . . [under CPLR 2103], the additional days provided by such paragraphs shall apply to this action, regardless of which party serves the judgment or order with notice of entry" (CPLR 5513 [d]). This 1999 amendment to CPLR 5513 gives an additional five days to take an appeal when a notice of entry is served by mail, regardless of which party serves the notice of entry. The Legislature has not acted to alter statutes other than CPLR 5513, so as to make corresponding clarifications in areas other than appeals.

Here, defendants benefitted from the rule that papers are deemed served upon mailing – in this case on August 20. Plaintiffs, who would have received the papers some days after that, would have known that, while the statute requires a response within five days, i.e. by August 25, they could add five days and serve their response, if they chose to make one, on or before August 30. The five-day timetable is indisputably subject to extension under CPLR 2103 (b) (2), because it is a responsive deadline (Podolsky by Podolsky v Nevele Winter Sports, 233 AD2d 605, 605-606 [3d Dept 1996]; Hughes v Nigro, 108 AD2d 722, 723 [2d Dept 1985]). Defendants, on the other hand, were "not directly responding" to any papers, as the majority concedes (majority op at 4). Having no doubt marked plaintiffs' August 30 deadline on their calendar, defendants had until September 4, to serve, by mail if they chose, their motion for change of place of trial. That they did not is, in my view, fatal to their motion.

Defendants argue that plaintiffs' reading of CPLR 2103 (b) (2) creates practical difficulties for litigants. Given that plaintiffs have 10 days to decide about consent, the 15-day deadline for the motion means that defendants may have only 5 days between a service by mail of consent to change of venue and the motion deadline. If the mailing delay is 3 days, the time for preparing and filing the motion would end up being 2 days. Giving both parties the benefits of the extended period might be a good idea, practically. But one need only refer to CPLR § 2214 (b), which allows reply papers to be served by mail one day before the return date of a motion, to know that the Rules have not always been drafted with practicality in mind. In such a situation, an appellate court may signal the practical difficulties to the Legislature, so that it may consider amending the statute. But it is up to the Legislature to enact such a law.

In light of the legislative history and standard interpretations of CPLR 2103 (b) (2) in case law and commentary, I think it clear that 2103 (b) benefits only the party responding to the service, and I would therefore affirm the order of the Appellate Division.

3211(a)(5): Judgment on consent

CPLR R. 3211 Motion to dismiss

(a)(5) the cause of action may not be maintained because of arbitration and award, collateral estoppel, discharge in bankruptcy, infancy or other disability of the moving party, payment, release, res judicata, statute of limitations, or statute of frauds

Vitarelle v Vitarelle, 2011 NY Slip Op 08351 (2nd Dept., 2011)

"Under the doctrine of res judicata, a final disposition on the merits bars litigation between the same parties of all other claims arising out of the same transaction or out of the same or related facts, even if based upon a different theory involving materially different elements of proof. The rule applies not only to claims litigated but also to claims that could have been raised in the prior litigation" (Matter of City of New York v Schmitt, 50 AD3d 1032, 1033 [citations omitted]; see Osborne v Rossrock Fund II, L.P., 82 AD3d 727, 727-728; Shelley v Silvestre, 66 AD3d 992, 993).

In a prior action, the plaintiff consented to the entry of a judgment in favor of the defendant Richard Vitarelle, Jr., and against him on his counterclaim for possession of the subject property (see Vitarelle v Vitarelle, 65 AD3d 1035). "[A] judgment on consent is conclusive and has the same preclusive effect as a judgment after trial" (Silverman v Leucadia, Inc., 156 AD2d 442, 443; see Prudential Lines v Firemen's Ins. Co. of Newark, N.J., 91 AD2d 1, 3). The claims asserted in the instant complaint were raised or could have been raised in the prior action, which was disposed of on the merits. Accordingly, the Supreme Court properly granted that branch of the defendants' motion which was pursuant to CPLR 3211(a)(5) to dismiss the complaint on the ground that the action is barred by the doctrine of res judicata (see Cypress Hills Cemetery v City of New York, 67 AD3d 853, 854; Shelley v Silvestre, 66 AD3d at 993).

3213

CPLR § 3213 Motion for summary judgment in lieu of complaint

Singotiko v Kenealy, 2011 NY Slip Op 08341 (2nd Dept., 2011)

The Supreme Court properly granted the plaintiff's motion for summary judgment in lieu of complaint pursuant to CPLR 3213 based on two promissory notes. The plaintiff met her burden of establishing that the defendant executed the two notes and defaulted in making payments according to their terms (see Larry Lawrence IRA v Exeter Holding Ltd., 84 AD3d 1175, 1176; Jin Sheng He v Sing Huei Chang, 83 AD3d 788, 789; Cutter Bayview Cleaners, Inc. v Spotless Shirts, Inc., 57 AD3d 708, 709). In opposition, the defendant failed to raise a triable issue of fact (see Levien v Allen, 52 AD3d 578; Lorenz Diversified Corp. v Falk, 44 AD3d 910; Anand v Wilson, 32 AD3d 808, 810). Moreover, while the defendant alleged the existence of several counterclaims, he failed to show that the counterclaims were related to, much less intertwined with, the subject promissory notes (see Lorber v Morovati, 83 AD3d 799, 800; Neuhaus v McGovern, 293 AD2d 727, 728; Harris v Miller, 136 AD2d 603).

CE waived and a late SJ

Ofman v Ginsberg, 2011 NY Slip Op 08334 (2nd Dept., 2011)

Although the defendant characterized his motion as one for in limine relief, he argued that the cause of action alleging legal malpractice could not be maintained because of collateral estoppel (see CPLR 3211[a][5]). Notably, he did not raise this objection or defense in either his answer or his original motion to dismiss the complaint (see CPLR 3211[e]). Accordingly, the defense based on the doctrine of collateral estoppel was waived (id.). Under the circumstances, we agree with the plaintiff that the defendant's trial motion was, in effect, an untimely motion for summary judgment (see West Broadway Funding Assoc. v Friedman, 74 AD3d 798, 798; Brewi-Bijoux v City of New York, 73 AD3d 1112, 1113; Matter of City of New York v Mobil Oil Corp., 12 AD3d 77, 80-81; Rivera v City of New York, 306 AD2d 456, 456-457; Rondout Elec. v Dover Union Free School Dist., 304 AD2d 808, 811) based on a defense that was waived (see CPLR 3211[e]). "[A] motion in limine is an inappropriate substitute for a motion for summary judgment" (Rondout Elec. v Dover Union Free School Dist., 304 AD2d at 810-811). Moreover, the Supreme Court improvidently exercised its discretion in considering this motion since the defendant failed to offer any excuse for the untimely submission of the motion (see CPLR 3212[a]; Brill v City of New York, 2 NY3d 648). As the motion should have been denied, we reverse the judgment and reinstate the complaint (see Brewi-Bijoux v City of New York, 73 AD3d at 1113).

Industry custom and practice

Cassidy v Highrise Hoisting & Scaffolding, Inc., 2011 NY Slip Op 07936 (1st Dept., 2011)

The affidavit of plaintiffs' site safety expert failed to create questions of fact warranting denial of summary judgment. An expert's opinion should be disregarded where no authority, treatise, standard, building code, article or other corroborating evidence is cited to support the assertion concerning an alleged deviation from good and accepted industry custom and practice (Buchholz v Trump 767 Fifth Ave., LLC, 5 NY3d 1, 2 [2005]). "Before a claimed industry standard is accepted by a court as applicable to the facts of a case, the expert must do more than merely assert a personal belief that the claimed industry-wide standard existed at the time the design was put in place" (Hotaling v City of New York, 55 AD3d 396, 398 [2008], affd 12 NY3d 862 [2009]).