Author: DMG

Premature 4401

CPLR R. 4401

Bodge v Red Hook Senior Hous. Dev. Fund Co., Inc., 2011 NY Slip Op 05644 (2nd Dept. 2011)

Pursuant to CPLR 4401, "[a]ny party may move for judgment with respect to a cause of action or issue upon the ground that the moving party is entitled to judgment as a matter of law, after the close of the evidence presented by an opposing party with respect to such cause of action or issue." At the time the plaintiff moved pursuant to CPLR 4401 for judgment as a matter of law on the issue of liability on his cause of action alleging a violation of Labor Law § 240(1), the defendants had not completed their case. Therefore, the plaintiff's motion was premature, and the plaintiff never renewed his motion (see DeWall v Owl Homes of Victor, 213 AD2d 977; Siegel, Practice Commentaries, McKinney's Cons Laws of NY, Book 7B, CPLR C4401:4, C4401:5). 

The plaintiff's contention that the jury's verdict is inconsistent is not preserved for appellate review, since he did not raise that issue before the jury was discharged (see Rivera v MTA Long Is. Bus, 45 AD3d 557, 557-558; Delacruz v Galaxy Elec., 300 AD2d 278).

Oh the places an EBT will take you

This decision is nothing like the title of the post.  Sucker.

Braverman v Bendiner & Schlesinger, Inc., 2011 NY Slip Op 05645 (2nd Dept. 2011)

No appeal as of right lies from an order determining an application to review rulings made at an examination before trial (see Nappi v North Shore Univ. Hosp., 31 AD3d 509, 510-511; Scalone v Phelps Mem. Hosp. Ctr., 184 AD2d 65, 69). Similarly, the denial of a protective order preventing the further examination of a witness is not appealable as of right, since that is in the nature of an order on application to review objections raised at an examination before trial (see Robinson v Pediatric Assoc. of Irwin Ave., 307 AD2d 1029, 1030; Efdey Elec. Contrs. v Melita, 151 AD2d 640, 641; Miller v United Parcel Serv., 143 AD2d 820, 821). The defendant Bendiner & Schlesinger, Inc., has not sought leave to appeal, and there is nothing in the record which would warrant granting leave to appeal on the Court's own motion (see Daniels v Fairfield Presidential Mgt. Corp., 43 AD3d 386, 387; Nappi v North Shore Univ. Hosp., 31 AD3d at 511; cf. Scalone v Phelps Mem. Hosp. Ctr., 184 AD2d at 69; Hughson v St. Francis Hosp. of Port Jervis, 93 AD2d 491, 495).

Just some CPLR § 6501 to pass the time

CPLR § 6501  Notice of pendency; constructive notice

Del Pozo v Impressive Homes, Inc., 2011 NY Slip Op 06091 (2nd Dept., 2011)

While a purchaser or encumbrancer whose interest in property is acquired after the filing of a notice of pendency is bound by all proceedings taken in the action (see CPLR 6501), a notice of pendency does not serve to create rights (see 2386 Creston Ave. Realty, LLC v M-P-M Mgt. Corp., 58 AD3d 158, 161) which would give rise to a viable claim to recover damages against a subsequent mortgagee.

Sumry Judments with a little RJ and JE, all in the 1st Department. One bit of EE in the 2nd.

CPLR R. 3212

Lance Intl., Inc. v First Natl. City Bank, 2011 NY Slip Op 05982 (1st Dept., 2011) 

Contrary to defendant's contention, its defense is that plaintiff lacks capacity to sue, not that the court lacks subject matter jurisdiction (see Security Pac. Natl. Bank v Evans, 31 AD3d 278, 279-280 [2006], appeal dismissed 8 NY3d 837 [2007]). Contrary to plaintiff's contention, Civil Court did not raise the issue of lack of capacity sua sponte.

While a defense that a party lacks capacity to sue (see CPLR 3211[a][3]) is waived if not raised in a pre-answer motion or in a responsive pleading (see CPLR 3211[e]), plaintiff's lack of capacity did not arise until after joinder of issue, and therefore, defendant did not waive that defense (see George Strokes Elec. & Plumbing v Dye, 240 AD2d 919, 920 [1997]).

A defendant may move for summary judgment based on an unpleaded defense (see e.g. Rogoff v San Juan Racing Assn., 54 NY2d 883, 885 [1981]). Plaintiff can hardly claim prejudice or surprise from defendant's assertion that it lacked capacity to sue. In 1995, it moved to substitute its president as the plaintiff, arguing that he was "the real party in interest by virtue of the dissolution of the corporation."

Defendant's underlying motion for summary judgment was timely (see CPLR 3212[a]). Plaintiff has supplied no proof in the record that Civil Court required defendant to file its summary judgment motion by July 21, 2008. Even if, arguendo, one judge of the Civil Court ordered defendant to file its motion by July 21, 2008, this order was superseded by the parties' October 16, 2008 stipulation, which set a briefing schedule for the motion and was so-ordered by another judge of the Civil Court.

Plaintiff's original note of issue, which was filed on October 19, 2007, "was, in effect, nullifed" (Negron v Helmsley Spear, Inc., 280 AD2d 305 [2001]) when the action was removed from the trial calendar. Therefore, the operative note of issue is the one filed on April 25, 2008 (see Williams v Peralta, 37 AD3d 712, 713 [2007]), and the motion was timely.

Montolio v Negev LLC, 2011 NY Slip Op 05985 (1st Dept., 2011)

Furthermore, although Negev's answer is contained in the record, it is verified only by counsel. The motion also is supported only by counsel's affirmation; no submission was made by anyone with personal knowledge (Lopez v Crotona Ave. Assoc., LP, 39 AD3d 388, 390 [2007]).

 

RJ and JD

 

UBS Sec. LLC v Highland Capital Mgt., L.P., 2011 NY Slip Op 05979 (1st Dept., 2011)

The parties appealed, presenting us with the question whether and to what extent the doctrine of res judicata applies to these circumstances. The doctrine dictates that, "as to the parties in a litigation and those in privity with them, a judgment on the merits by a court of competent jurisdiction is conclusive of the issues of fact and questions of law necessarily decided therein in any subsequent action" (Gramatan Home Inv. Corp. v Lopez, 46 NY2d 48l, 485 [1979]). It used to be the rule that, even if the two actions arose out of an identical course of dealing, the second was not barred by res judicata if "the requisite elements of proof and hence the evidence necessary to sustain recovery var[ied] materially" (Smith v Kirkpatrick, 305 NY 66, 72 [1953]). However, the Court of Appeals expressly rejected that method of analysis in O'Brien v City of Syracuse (54 NY2d 353 [1981]). There it held that "once a claim is brought to a final conclusion, all other claims arising out of the same transaction or series of transactions are barred, even if based upon different theories or if seeking a different remedy" (54 NY2d at 357). The Court further stated: 

"[w]hen alternative theories are available to recover what is essentially the same relief for harm arising out of the same or related facts such as would constitute a single factual grouping' (Restatement, Judgments 2d, § 61 [Tent Draft No. 5]), the circumstance that the theories involve materially different elements of proof will not justify presenting the claim by two different actions" (id. at 357-358).

Notably, regarding this point, the Court stated in a footnote that, insofar as Smith (305 NY at 66) "may be to the contrary, it is overruled" (id.). Whether facts are deemed to constitute a single factual grouping for res judicata purposes "depends on how the facts are related in time, space, origin, or motivation, whether they form a convenient trial unit, and whether . . . their treatment as a unit conforms to the parties' expectations or business understanding or usage" (Smith v Russell Sage Coll., 54 NY2d 185, 192-193 [1981] [internal quotation marks and citations omitted]).

Here, to the extent the claims against Highland in the new complaint implicate events alleged to have taken place before the filing of the original complaint, res judicata applies. That is because UBS's claims against Highland in the original action and in this action all arise out of the restructured warehousing transaction. While the claim against Highland in the original action was based on Highland's alleged obligation to indemnify UBS for actions taken by the affiliated funds, and the claims against Highland in the second action arose out of Highland's alleged manipulation of those funds, they form a single factual grouping. Both are related to the same business deal and to the diminution in the value of the securities placed with UBS as a result of that deal. Thus, the claims form a convenient trial unit. Moreover, it can hardly be said that the claims in the two actions are so unrelated that reasonable business people, not to mention the parties themselves, would have expected them to be tried separately (see Smith, 54 NY2d at 192-193). Also, we note that, when seeking permission to amend the complaint, UBS itself asserted that "the new causes of action arise out of the same or related circumstances and events as UBS's pending claims."

Further, the Court of Appeals' holding in Xiao Yang Chen v Fischer (6 NY3d 94 [2005]) [*6]does not support UBS's position. Nor does it represent a shift in res judicata jurisprudence, as UBS argues. The circumstances of this case bear no resemblance to those in Xiao Yang Chen, which involved a woman who, in a previously filed separate action, was granted a divorce on the ground of cruel and inhuman treatment. In the divorce action, the plaintiff supported her cruel and inhuman treatment claim with an allegation that her husband had slapped her, causing injury. While the divorce action was pending, the plaintiff commenced a separate personal injury action seeking damages for the intentional infliction of emotional distress and injuries arising out of the alleged assault. In finding that res judicata did not bar the personal injury action, the Court of Appeals noted that the two actions sought different types of relief and did not constitute a convenient trial unit. The Court of Appeals also noted other significant distinctions, such as the facts that divorce actions are typically decided by a judge and that attorneys in personal injury actions may be compensated by a contingency fee, and the policy consideration of expediting divorce proceedings. None of those considerations applies here, where the action seeks money damages arising only in connection with a commercial transaction. 

While we have concluded that res judicata bars the claims in this action, we still must address UBS's assertion that it would be fundamentally unfair to apply res judicata under the circumstances of this case. UBS bases this argument primarily on the contention that it would have moved to amend the complaint in the original action while that action was still in existence (i.e., before this Court dismissed it), but for the necessity that it comply with the Commercial Part rules requiring that it first seek permission in a letter. However, this argument fails because, even had they made such a motion, the ultimate result would have been the same. As evidenced by the affidavit of its former employee, UBS was aware of the facts that support the claims in this action as long ago as November 2008. That was before UBS filed the original action.

Indeed, the evidence that the former employee admits had been gathered by UBS at that time supports all the claims asserted against Highland in this action. That UBS received additional evidence in the document production that Highland made shortly before UBS sought to amend its complaint is irrelevant. The proper inquiry for res judicata purposes is when UBS could have raised a cause of action, not when it had enough evidence to prove the claim at trial (see Castellano v City of New York, 251 AD2d 194, 195 [1998], lv denied 92 NY2d 817 [1998], cert denied 526 US 1131 [1999]). In this regard, we note that, based on what it admits it knew in November 2008, UBS could have pleaded its fraud claim with the requisite particularity at that time, since the facts available would have permitted a "reasonable inference of the alleged conduct" (Pludeman v Northern Leasing Sys., Inc., 10 NY3d 486, 492 [2008]). Because UBS could have asserted the instant claims in the original complaint or moved to amend well before that complaint was dismissed by this Court, we are not persuaded that the Rules of the Commercial Part affected the eventual result. Nevertheless, to the extent that the third and fourth causes of action, alleging breach of the covenant of good faith and fair dealing and fraudulent conveyance, respectively, rely on conduct alleged to have occurred after the commencement of the prior action, such claims should be allowed.

Nor do we share the motion court's concern that it is unfair to apply res judicata where Highland remains a party to the action by dint of its counterclaims. It would likewise be unjust to hold that a defendant that chooses to assert a counterclaim forfeits its right to assert the defense of res judicata with respect to the main claims. Indeed, to so hold would deal a blow to judicial economy since counterclaims are not compulsory in New York (67-25 Dartmouth St. Corp. v Syllman, 29 AD3d 888, 889 [2006]), and defendants would merely assert their own [*7]claims in separate actions to avoid the application of res judicata.

Kvest LLC v Cohen, 2011 NY Slip Op 05984 (1st Dept., 2011)

Plaintiff is not barred by the doctrine of judicial estoppel from asserting that the disclaimer is valid because it did not prevail in the declaratory judgment action (see Rothstein & Hoffman Elec. Serv., Inc. v Gong Park Realty Corp., 37 AD3d 206, 207 [2007], lv denied 8 NY3d 812 [2007]; Jones Lang Wootton USA v LeBoeuf, Lamb, Greene & MacRae, 243 AD2d 168, 176 [1998], lv dismissed 92 NY2d 962 [1998]). However, contrary to plaintiff's argument, the doctrine of collateral estoppel does not bind defendants to the declaratory judgment court's determination that defendants did not timely notify the carrier of the claim letter. Defendants were not parties to that action. The doctrine of collateral estoppel is binding only upon parties or their privies who have had a full and fair opportunity to litigate issues determined in prior proceedings (see Gramatan Home Invs. Corp. v Lopez, 46 NY2d 481, 485-486 [1979]).

Defendants state in their affidavit that they mailed a copy of the claim letter to the carrier [*2]on May 6, 2004, two days after they received it from plaintiff. However, a notice of occurrence/claim form prepared by defendants on October 2, 2004 indicates that the claim had not previously been reported. This raises a triable issue of fact as to whether defendants timely notified the carrier of the claim letter. 

Contrary to defendants' assertion, the damages recoverable in this action can include plaintiff's reasonable attorneys' fees incurred in defending the carrier's declaratory judgment action in its effort to mitigate its damages (see Martini v Lafayette Studio Corp., 273 AD2d 112, 114 [2000]). On the other hand, the breach of fiduciary duty cause of action was properly dismissed as the facts establish that the parties had nothing more than a typical insurance broker-customer relationship (see e.g. Murphy v Kuhn, 90 NY2d 266, 270-271 [1997]).

Equitable estoppel

Giannetto v Knee, 82 AD3d 1043 (2nd Dept. 2011)

The Supreme Court erred, however, in granting that branch of the defendants' motion which was for summary judgment dismissing the malpractice cause of action against Knee on the basis of the statute of limitations. Although the defendants established, prima facie, that the action was commenced well beyond the 2½-year statute of limitations applicable to claims alleging dental malpractice (see CPLR 214-a), the plaintiff raised a triable issue of fact as to whether Knee should be equitably estopped from raising the defense of the statute of limitations. "Equitable estoppel is appropriate where the plaintiff is prevented from filing an action within the applicable statute of limitations due to his or her reasonable reliance on deception, fraud or misrepresentations by the defendant" (Putter v North Shore Univ. Hosp., 7 NY3d 548, 552-553 [2006]; see Simcuski v Saeli, 44 NY2d at 448-449). Whether equitable estoppel applies is generally a question of fact (see Vigliotti v North Shore Univ. Hosp., 24 AD3d 752, 755 [2005]), and a mere failure to disclose malpractice or diagnose a condition does not give rise to equitable estoppel (see Rizk v Cohen, 73 NY2d 98 [1989]; Simcuski v Saeli, 44 NY2d at 450; Reichenbaum v Cilmi, 64 AD3d 693, 695 [2009]; Bevinetto v Steven Plotnick, M.D., P.C., 51 AD3d 612, 614 [2008]; Dombroski v Samaritan Hosp., 47 AD3d 80 [2007]; Coopersmith v Gold, 172 AD2d 982, 983 [1991]). Here, the plaintiff's sworn allegations raised a triable issue of fact as to whether Knee concealed his malpractice by knowingly misrepresenting her condition and by bonding tooth number 21, a procedure that the plaintiff alleges he knew was not effective (see Vigliotti v North Shore Univ. Hosp., 24 AD3d at 755; Szajna v Rand, 131 AD2d 840, 841 [1987]). Additionally, the plaintiff raised a triable issue of fact as to whether she commenced the action within a reasonable time after her discovery of the alleged malpractice (see Edmonds v Getchonis, 150 AD2d 879, 882 [1989]).

 

Experts Shmexperts

CPLR § 3101(d)

Rost v Stolzman, 81 AD3d 1401 (App. Div. 4th 2011) 

We note that, in reaching our determination, we have disregarded the affidavit of the accident reconstruction expert submitted in support of the motion inasmuch as the conclusions asserted therein "are speculative or unsupported by any evidentiary foundation" (Diaz v New York Downtown Hosp., 99 NY2d 542, 544 [2002]; see Ciccarelli v Cotira, Inc., 24 AD3d 1276 [2005]). Even assuming, arguendo, that the affidavit was supported by an evidentiary foundation, we conclude that the court properly denied the motion because there is a triable issue of fact whether Martino drove in a lawful and prudent manner immediately before the accident (see Bulls, 71 AD3d at 1409; Fratangelo, 294 AD2d 880; see generally Derdiarian v Felix Contr. Corp., 51 NY2d 308, 315 [1980], rearg denied 52 NY2d 784, 829 [1980]).

Jean-Louis v City of New York, 2011 NY Slip Op 06094 (2nd Dept., 2011)

The Supreme Court properly denied the NYCTA's motion to preclude the testimony of the plaintiff's expert. Generally, the admission of expert testimony is a matter that lies within the sound discretion of the trial court (see Berger v Tarry Fuel Oil Co., 32 AD3d 409, 409). Here, the plaintiff's expert helped clarify the issue of whether the I-beams constituted a dangerous condition, which called "for professional or technical knowledge, possessed by the expert and beyond the ken of the typical juror" (De Long v County of Erie, 60 NY2d 296, 307).

Sushchenko v Dyker Emergency Physicians Serv., P.C., 2011 NY Slip Op 06101 (2nd Dept., 2011)

The trial court providently exercised its discretion in precluding the plaintiffs' expert witness from testifying regarding causation on the ground that proper CPLR 3101(d) disclosure was not provided (see Schwartzberg v Kingsbridge Hgts. Care Ctr., 28 AD3d 463, 464; Hubbard v Platzer, 260 AD2d 605; Rassaei v Kessler, 252 AD2d 577; cf. McGlauflin v Wadhwa, 265 AD2d 534. Proper disclosure of an expert neurologist who was to testify on the subject of causation was not provided to the respondents until several days after the trial had commenced (see Schwartzberg v Kingsbridge Hgts. Care Ctr., 28 AD3d at 464-465; Hubbard v Platzer, 260 AD2d at 605; Rassaei v Kessler, 252 AD2d at 577). The plaintiffs failed to show good cause for this untimely disclosure (see Quinn v Artcraft Constr., 203 AD2d 444, 445; Corning v Carlin, 178 AD2d 576, 577).

Expert testimony is necessary to prove a deviation from the accepted standard of medical care and to establish proximate cause where, as here, the matter is not within the experience of the ordinary juror (see Lyons v McCauley, 252 AD2d 516, 517). When the testimony of a necessary expert witness is precluded, and it is therefore impossible to make out a prima facie case, it is proper to dismiss the complaint (see Bickford v St. Francis Hosp., 19 AD3d 344, 346; Rossi v Matkovic, 227 AD2d 609; Kalkan v Nyack Hosp., 214 AD2d 538, 539). The complaint was, therefore, properly dismissed insofar as asserted against the respondents pursuant to CPLR 4401 (see Szczerbiak v Pilat, 90 NY2d 553, 556; Godlewska v Niznikiewicz, 8 AD3d 430, 431; Smith v Vosburgh, 176 AD2d 259).

Sparks v Detterline, 2011 NY Slip Op 06025 (2nd Dept., 2011)

The defendants failed to meet their prima facie burden of showing that the plaintiff did not sustain a serious injury within the meaning of Insurance Law § 5102(d) as a result of the subject accident (see Toure v Avis Rent A Car Sys., 98 NY2d 345; Gaddy v Eyler, 79 NY2d 955, 956-957; Alvarez v Prospect Hosp., 68 NY2d 320, 324; Winegrad v New York Univ. Med. Ctr., 64 NY2d 851, 852; Zuckerman v City of New York, 49 NY2d 557, 559). The conclusion set forth in the affirmed report of the defendant's examining physician, Dr. Jeffrey S. Oppenheim, that the plaintiffs' complaints were subjective in nature and that she had "no objective identifiable neurological deficit, and therefore, no objective neurological disability," was conclusory, speculative, and insufficient to establish the defendants' prima facie entitlement to judgment as a matter of law, as Dr. Oppenheim conducted no objective range-of-motion testing (see Borras v Lewis, 79 AD3d 1084; Powell v Prego, 59 AD3d 417, 418-419; cf. Conder v City of New York, 62 AD3d 743. Further, Dr. Oppenheim's assertion that the plaintiff, during his examination of her, was "essentially unable" to move her neck in any direction "in any significant way that would allow for a definition of range of motion testing" suggests that any limitation was not insignificant (cf. Kharzis v PV Holding Corp., 78 AD3d 1122; Kjono v Fenning, 69 AD3d 581). Accordingly, the Supreme Court should have denied the defendants' motion for summary judgment dismissing the complaint.

So is CPLR R. 3216

CPLR R. 3216

Kadyimov v Mackinnon, 82 AD3d 938] (App. Div., 2nd 2011)

CPLR 3216 is an "extremely forgiving" statute (Baczkowski v Collins Constr. Co., 89 NY2d 499, 503 [1997]), which "never requires, but merely authorizes, the Supreme Court to dismiss a plaintiff's action based on the plaintiff's unreasonable neglect to proceed" (Davis v Goodsell, 6 AD3d 382, 383 [2004]; see Di Simone v Good Samaritan Hosp., 100 NY2d 632, 633 [2003]; Gibson v Fakheri, 77 AD3d 619 [2010]; Ferrera v Esposit, 66 AD3d 637, 638 [2009]). Although the statute prohibits the Supreme Court from dismissing a complaint based on failure to prosecute whenever the plaintiff has shown a justifiable excuse for the delay and the existence of a potentially meritorious cause of action, "such a dual showing is not strictly necessary in order for the plaintiff to escape such a dismissal" (Davis v Goodsell, 6 AD3d at 384; see Baczkowski v Collins Constr. Co., 89 NY2d at 503-504; Gibson v Fakheri, 77 AD3d 619 [2010]; Ferrera v Esposit, 66 AD3d at 638). 

Here, the plaintiff attempted to file her note of issue 11 days beyond the deadline set by the Supreme Court's certification order, and moved for relief shortly after learning that the case had been marked "disposed." Moreover, the defendants did not claim to have been prejudiced by the minimal delay involved in this case. Furthermore, there is no evidence in the record of a pattern of persistent neglect and delay in prosecuting the action, or of any intent to abandon the action. Under these circumstances, the Supreme Court providently exercised its discretion in excusing the plaintiff's failure to meet the deadline for filing the note of issue (see Ferrera v Esposit, 66 AD3d at 638; Zito v Jastremski, 35 AD3d 458, 459 [2006]; Diaz v Yuan, 28 AD3d 603 [2006]).

Gagnon v Campbell, 2011 NY Slip Op 06092 (2nd Dept. 2011)

The defendant served the plaintiff's attorney with a valid 90-day demand pursuant to CPLR 3216 on January 9, 2008. Upon receipt of the 90-day demand, the plaintiff was required to comply with it either by serving and filing a timely note of issue or by moving, before the default date, to vacate the demand or to extend the 90-day period pursuant to CPLR 2004 (see Sanchez v Serje, 78 AD3d 1155, 1156; Bokhari v Home Depot U.S.A., 4 AD3d 381; McKinney v Corby, 295 AD2d 580, 581). Having failed to pursue any of the foregoing options, the plaintiff was obligated to demonstrate a reasonable excuse for the delay and a potentially meritorious cause of action to avoid the sanction of dismissal (see CPLR 3216[e]; Dominguez v Jamaica Med. Ctr., 72 AD3d 876; Picot v City of New York, 50 AD3d 757, 758; McKinney v Corby, 295 AD2d at 581; Flomenhaft v Baron, 281 AD2d 389). In renewing her opposition to the defendant's motion to dismiss the complaint pursuant to CPLR 3216, the plaintiff failed to offer new facts not offered on the prior motion that would change the prior determination (see CPLR 2221[e][2]; Jackson Hgts. Care Ctr., LLC v Bloch, 39 AD3d 477, 480). The plaintiff failed to submit any medical evidence demonstrating that she sustained a serious injury within the meaning of Insurance Law § 5102(d) as a result of the subject motor vehicle accident (see Louis v MTA Long Is. Bus Co., 44 AD3d 628; Parks v Miclette, 41 AD3d 1107, 1110; Berktas v McMillian, 40 AD3d 563, 563-564). Therefore, the plaintiff failed [*2]to demonstrate that she has a potentially meritorious cause of action.

CPLR § 3126 is a creeper

CPLR § 3126

Callaghan v Curtis, 82 AD3d 818 (App. Div., 2nd 2011)

"[A] trial court is given broad discretion to oversee the discovery process" (Castillo v Henry Schein, Inc., 259 AD2d 651, 652 [1999]). Here, the plaintiff clearly violated a prior order of the Supreme Court by failing to bring certain documents to her deposition. Her attorney also made extensive "speaking objections" during the deposition, and the plaintiff herself repeatedly refused to answer clear questions. We conclude that the Supreme Court providently exercised its discretion, upon the defendants' motion pursuant to CPLR 3126 to strike her reply to their counterclaims, by, inter alia, precluding the plaintiff from offering any documents at trial (see e.g. O'Neill v Ho, 28 AD3d 626, 627 [2006]).

Delarosa v Besser Co., 2011 NY Slip Op 06016 (2nd Dept., 2011)

The Supreme Court providently exercised its discretion in denying that branch of the appellants' motion which was to dismiss the complaint pursuant to CPLR 3126(3), since there was no clear showing that the plaintiff's failure to comply with the appellants' discovery demand was willful and contumacious (see CPLR 3126; ACME ANC Corp. v Read, 55 AD3d 854, 855; Myung Sum Suh v Jung Ja Kim, 51 AD3d 883; Manko v Lenox Hill Hosp., 44 AD3d 1014; Resnick v Schwarzkopf, 41 AD3d 573). The plaintiff substantially, albeit tardily, complied with the discovery demand (see Mironer v City of New York, 79 AD3d 1106, 1108; ACME ANC Corp. v Read, 55 AD3d at 855; Resnick v Schwarzkopf, 41 AD3d 573).

Procedural cornucopia and 5015

CPLR R. 5015

CPLR § 5501

Pollak v Moore, 2011 NY Slip Op 05351 (1st Dept. 2011)

Plaintiff's appeal from the judgment does not bring up for review an order of the motion court, entered November 20, 2009 (Richard B. Lowe, III, J.), which was marked "final disposition" and, in fact, disposed of all of plaintiff's claims, leaving nothing further in the action that would require non-ministerial judicial action (see CPLR 5015[a][1]; Burke v Crosson, 85 NY2d 10 [1995]). While the judgment explicitly referred to the November 20, 2009 order, and such order "affected" the judgment, the November 20, 2009 order did not meet the further criterion that the underlying order sought to be reviewed on appeal from the judgment be "non-final" (see CPLR 5501[a][1]). Plaintiff abandoned his appeal from the November 20, 2009 order, and cannot revive that appeal by the expedient of effecting a ministerial entry of judgment upon the final order after expiration of the time to perfect the initial appeal. 

Assuming we were able to reach plaintiff's appellate arguments on the merits, we would find them unavailing. Plaintiff's initial argument that Justice Lowe's November 20, 2009 order was void as it was dated approximately two weeks after Justice Lowe had transferred the action to another IAS part, and such transfer was based on his recusing himself from the action, is unsupported by the record. A review of the relevant transfer orders indicates that the transfer of the action to Justice Walter Tolub, who was handling a related foreclosure proceeding, was done for judicial economy purposes. Moreover, it is noted that prior to the transfer, defendants' motion to dismiss was fully submitted and orally argued before Justice Lowe, and Justice Lowe informed the parties that he would render a decision on the motion (see generally Hudson View II Assoc. v Miller, 282 AD2d 345 [2001], lv dismissed 96 NY2d 937 [2001]; Zelman v Lipsig, 178 AD2d 298 [1991]). Plaintiff offers no evidence to indicate bias or impropriety in the rendering of the November 20, 2009 order (see generally Hudson View II Assoc., 282 AD2d 345). We find plaintiff's related due process arguments unavailing.

We find that plaintiff's breach of contract claim, which was predicated upon a purported agreement by defendants to sell plaintiff a portion of a lot (with improvements thereon) pending formal division of the lot on the New York City tax map, to be barred by the statute of frauds. The documentary evidence established that the purported agreement was not signed by all the parties to be charged (see General Obligations Law § 5-703[2]; Naldi v Grunberg, 80 AD3d 1 [2010], lv denied __ NY3d __, 2011 NY Slip Op 71494 [2011]), the sale terms were modified by plaintiff, and the parties had an opportunity to execute plaintiff's marked-up contract of sale, but did not elect to execute such agreement. To the extent plaintiff relies on other writings to argue that they demonstrate the parties to be charged agreed to the sale of a portion of a lot to plaintiff (see generally WWP Group USA v Interpublic Group of Cos., 228 AD2d 296 [1996]), we find that the writings do no more than reflect interest of the parties to be charged in effecting a sale of the portion of the property to plaintiff upon appropriate terms.Plaintiff's alternative claims sounding in breach of fiduciary duty, fraud, fraud in the inducement and negligent misrepresentation were duplicative of his breach of contract claims and, as such, properly dismissed (see J.E. Morgan Knitting Mills v Reeves Bros., 243 AD2d 422 [1997]; cf. Deerfield Communications Corp. v Chesebrough-Ponds, Inc., 68 NY2d 954 [1986]). Plaintiff's claim for unjust enrichment was unsupported by evidence that defendants, whose interest in the property at stake was foreclosed against, were enriched at plaintiff's expense (see generally Paramount Film Distrib. Corp. v State of New York, 30 NY2d 415 (1972), cert denied 414 US 829 [1973]; Weiner v Lazard Freres & Co., 241 AD2d 114, 119-120 [1998]).

Insofar as plaintiff requested leave to serve a second amended complaint, denial of such relief was a proper exercise of discretion as plaintiff failed to annex a copy of a proposed second amended pleading to his motion papers, and he did not otherwise offer an affidavit of merit or any "new" facts as would overcome the legal defects in his prior two complaints (see generally Jebran v LaSalle Bus. Credit, LLC, 33 AD3d 424 [2006]; Gonik v Israel Discount Bank of N.Y., 80 AD3d 437, 438-439 [2011]).

Kohn v Kohn, 2011 NY Slip Op 06095 (2nd Dept., 2011)

To vacate her default in opposing the plaintiff's motion, the defendant was required to demonstrate both a reasonable excuse for her default and a potentially meritorious opposition (see Remote Meter Tech. of NY, Inc. v Aris Realty Corp., 83 AD3d 1030; Bazoyah v Herschitz, 79 AD3d 1081). A motion to vacate a default is addressed to the sound discretion of the Supreme Court (see Dimitriadis v Visiting Nurse Serv. of N.Y., 84 AD3d 1150). The Supreme Court has the discretion to accept law office failure as a reasonable excuse (see CPLR 2005), where the claim of law office failure is supported by a "detailed and credible" explanation of the default (see Remote Meter Tech. of N.Y., Inc. v Aris Realty Corp., 83 AD3d 1030; Winthrop Univ. Hosp. v Metropolitan Suburban Bus Auth., 78 AD3d 685, 686). Here, the defendant's claim of law office failure was supported by a "detailed and credible" explanation of the default, and the Supreme Court providently exercised its discretion in accepting that explanation. Moreover, the defendant demonstrated the existence of a potentially meritorious opposition to the plaintiff's motion.

Herosay

Fiallos v New York Univ. Hosp., 2011 NY Slip Op 05623 (1st Dept. 2011)

In making its motion, defendant assumed the burden of disproving plaintiff's Bronx County residence (see e.g. Clarke v Ahern Prod. Servs., 181 AD2d 514 [1992]). Counsel's affidavit by which he cites unspecified "investigative efforts" that revealed that someone other than plaintiff occupied the apartment amounts to mere hearsay and is insufficient to carry defendant's initial burden (see Hurley v Union Trust Co. of Rochester, 244 App Div 590 [1935]). Even if accepted, defendant's proof would fall far short of establishing that plaintiff did not live anywhere in Bronx County when this action was commenced. Accordingly, defendant's failure to meet its initial burden of making a prima facie showing of entitlement to relief makes it unnecessary to consider the sufficiency of plaintiff's opposition to the motion (see e.g. Frees v Frank & Walter Eberhart L.P. No.1, 71 AD3d 491, 492 [2010]).

Petrillo v Town of Hempstead, 2011 NY Slip Op 05474 (2nd Dept. 2011)

Certain statements allegedly made by his decedent to him concerning the condition at issue constituted inadmissible hearsay (see Nucci v Proper, 95 NY2d 597, 602; Roldan v New York Univ., 81 AD3d 625; Rodriguez v Sixth President, Inc., 4 AD3d 406, 407).

CPLR R. 3211(a)(1) and (7): good language on 7

Pre answer (we are unwilling) and renew

Rowe v Nycpd, 2011 NY Slip Op 05477 (2nd Dept. 2011) 

However, after affording the plaintiff's allegations every possible favorable inference, we are unwilling to determine at this pre-answer stage of the litigation that the plaintiff has failed to assert claims alleging violations of federal civil and constitutional rights under color of state law, especially where, as here, the pleading is not being challenged for its sufficiency pursuant to CPLR 3211 (see 42 USC § 1983; see generally Matter of Upstate Land & Props., LLC v Town of Bethel, 74 AD3d 1450; Sonne v Board of Trustees of Vil. of Suffern, 67 AD3d 192).

Accordingly, the Supreme Court's dismissal of the complaint based on the plaintiff's failure to timely serve a notice of claim was proper except to the extent it dismissed the plaintiff's cause of action to recover damages for violation of his federal civil and constitutional rights under color of state law (see Dorce v United Rentals N. Am., Inc., 78 AD3d 1110; Pendleton v City of New York, 44 AD3d 733).

The Supreme Court also properly denied that branch of the plaintiff's motion which was for leave to renew his opposition to the defendants' motion to dismiss the complaint. "A motion for leave to renew is not a second chance freely given to parties who have not exercised due diligence in making their first factual presentation" (Elder v Elder, 21 AD3d 1055, 1055; Matter of Allstate Ins. Co. v Liberty Mut. Ins., 58 AD3d 727). A motion for leave to renew must be based upon new facts, not offered on the original application, "that would change the prior determination" (CPLR 2221[e][2]; see Matter of Korman v Bellmore Pub. Schools, 62 AD3d 882, 884). The new or additional facts must have either not been known to the party seeking renewal (see Matter of Shapiro v State of New York, 259 AD2d 753) or may, in the Supreme Court's discretion, be based on facts known to the party seeking renewal at the time of the original motion (see Cole-Hatchard v Grand Union, 270 AD2d 447). However, in either instance, a "reasonable justification" for the failure to present such facts on the original motion must be presented (CPLR 2221[e][3]; see Matter of Korman v Bellmore Pub. Schools, 62 AD3d at 884). What constitutes a "reasonable justification" is within the Supreme Court's discretion (Heaven v McGowan, 40 AD3d 583). Here, the Supreme Court did not improvidently exercise its discretion in denying leave to renew. Where, as here, the "new evidence" consists of documents which the plaintiff knew existed, and were in fact in his own possession at the time the initial motion was made, no reasonable justification exists for the plaintiff's failure to exercise due diligence by submitting the documents in the first instance (see generally May v May, 78 AD3d 667; Huma v Patel, 68 AD3d 821, 822).

3211(a)(1)(7)

Cog-Net Bldg. Corp. v Travelers Indem. Co., 2011 NY Slip Op 06014 (2nd Dept., 2011)

A motion to dismiss a complaint pursuant to CPLR 3211(a)(1) may be granted only where the documentary evidence submitted by the movant utterly refutes the plaintiff's allegations against it and conclusively establishes a defense as a matter of law (see Goshen v Mutual Life Ins. Co. of N.Y., 98 NY2d 314, 326; Rietschel v Maimonides Med. Ctr., 83 AD3d 810, 811; Fontanetta v John Doe, 73 AD3d 78, 83). Here, the documentary evidence submitted by the appellant failed to satisfy this standard, and the Supreme Court properly denied that branch of the appellant's motion which was pursuant to CPLR 3211(a)(1) to dismiss the complaint insofar as asserted against it.

Furthermore, "[i]n considering a motion to dismiss a complaint pursuant to CPLR 3211(a)(7), the court must accept the facts as alleged in the complaint as true, accord plaintiffs the benefit of every possible favorable inference, and determine only whether the facts as alleged fit within any cognizable legal theory'" (Ascani v EI Du Pont de Nemours & Co.,AD3d, 2011 NY Slip Op 05210 [2d Dept 2011], quoting Sokol v Leader, 74 AD3d 1180, 1181; see Leon v Martinez, 84 NY2d 83, 87-88). "Where evidentiary material is submitted and considered on a motion to dismiss a complaint pursuant to CPLR 3211(a)(7), and the motion is not converted into one for summary judgment, the question becomes whether the plaintiff has a cause of action, not whether the plaintiff has stated one and, unless it has been shown that a material fact as claimed by the plaintiff to be one is not a fact at all and unless it can be said that no significant dispute exists regarding it, dismissal should not eventuate" (Rietschel v Maimonides Med. Ctr., 83 AD3d at 810; see Guggenheimer v Ginzberg, 43 NY2d 268, 275; Sokol v Leader, 74 AD3d at 1180-1181). The [*2]plaintiff alleged in its complaint that it had a relationship with the appellant "so close as to approach that of privity" (Sykes v RFD Third Ave. 1 Assoc., LLC, 15 NY3d 370, 372 [internal quotation marks omitted]). Since the appellant failed to show that this material fact alleged by the plaintiff was not a fact at all, and failed, moreover, to demonstrate that no significant dispute exists regarding the allegation, the appellant was not entitled to dismissal of the causes of action sounding in negligent misrepresentation and negligent failure to procure insurance (cf. Sykes v RFD Third Avenue. 1 Assoc., LLC, 15 NY3d 370; Benjamin Shapiro Realty Co. v Kemper Natl. Ins. Cos., 303 AD2d 245, 245-246). Accordingly, the Supreme Court properly denied that branch of the appellant's motion which was pursuant to CPLR 3211(a)(7) to dismiss the complaint insofar as asserted against it.

Mason v First Cent. Natl. Life Ins. Co. of N.Y., 2011 NY Slip Op 06010 (3rd Dept. 2011)

As to defendant's argument that this claim failed to state a cause of action (see CPLR 3211 [a] [7]), we disagree. The question to be resolved on such a motion is not whether plaintiff "can ultimately establish [her] allegations" and is likely to prevail, but whether, if believed, her complaint sets forth facts that constitute a viable cause of action (EBC I, Inc. v Goldman, Sachs & Co., 5 NY3d 11, 19 [2005]; see Crepin v Fogarty, 59 AD3d at 838)[FN1]. Here, the allegations in the complaint, if accepted as true and accorded the benefit of every favorable inference, state such a claim (see Skibinsky v State Farm Fire & Cas. Co., 6 AD3d 975, 976 [2004]). Accordingly, defendant's motion to dismiss plaintiff's first cause of action on this ground must be denied.