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Cross motions and SJ

CPLR R. 2215 Relief Demanded by other than moving party

CPLR § 2001 Mistakes, omissions, defects, and irregularities

Daramboukas v Samlidis, 2011 NY Slip Op 03796 (App. Div., 2nd 2011)

Furthermore, the Supreme Court erred in denying Osdoby's motion for summary judgment dismissing the complaint and all cross claims insofar as asserted against her on the ground that it was incorrectly labeled a cross motion. Although "[a] cross motion is an improper vehicle for seeking affirmative relief from a nonmoving party" (Mango v Long Is. Jewish-Hillside Med. Ctr., 123 AD2d 843, 844; see CPLR 2215; Kleeberg v City of New York, 305 AD2d 549, 550), a technical defect of this nature may be disregarded where, as here, there is no prejudice, and the opposing parties had ample opportunity to be heard on the merits of the relief sought (see CPLR 2001; Sheehan v Marshall, 9 AD3d 403, 404; Kleeberg v City of New York, 305 AD2d at 550; Volpe v Canfield, 237 AD2d 282, 283). While the Supreme Court also denied Osdoby's motion on the ground that it was not supported by pleadings and other available proof, Osdoby incorporated by reference the pleadings and exhibits submitted by Albert in support of his original motion, and those pleadings and exhibits were therefore properly before the court (see Carlson v Town of Mina, 31 AD3d 1176, 1177; Welch v Hauck, 18 AD3d 1096, 1098; Mahone v Washington, 17 AD3d 1059). On the merits, Osdoby made a prima facie showing, through her deposition testimony, that she could not be held liable for the plaintiffs' injuries. That testimony demonstrated that she was driving in a nonnegligent manner when her vehicle was struck in the rear by the white van driven by Manginaro, and that her vehicle did not come into contact with any of the vehicles involved in the second collision about 20 car lengths east of the location where she was struck (see Vehicle and Traffic Law § 1129[a]; Savarese v Cerrachio, 79 AD3d 725). In opposition, the plaintiffs, Manginaro, and Langaman failed to raise a triable issue of fact.

The Supreme Court similarly erred in denying the Tam defendants' motion for summary judgment dismissing the complaint and all cross claims insofar as asserted against them on the ground that it was incorrectly labeled a cross motion (see CPLR 2001; Sheehan v Marshall, 9 AD3d at 404; Kleeberg v City of New York, 305 AD2d at 550; Volpe v Canfield, 237 AD2d at 283). On the merits, the Tam defendants made a prima facie showing that Daniel Tam was lawfully stopped at a red light when his vehicle was struck in the rear, and that he had a nonnegligent explanation for coming into contact with other vehicles at the scene after his vehicle was struck in the rear (see Savarese v Cerrachio, 79 AD3d 725; Franco v Breceus, 70 AD3d at 769; Ortiz v Haidar, 68 AD3d 953; Malak v Wynder, 56 AD3d at 623; Katz v Masada II Car & Limo Serv., Inc., 43 AD3d at 877). In opposition, the plaintiffs, Manginaro, and Langaman failed to raise a triable issue of fact.

Fine v One Bryant Park, LLC, 2011 NY Slip Op 03659 (App. Div., 1st 2011)

It is undisputed that defendants failed to file the motion within the time period set by the assigned IAS judge. The motion court concluded that defendants failed to establish good cause for the delay in making the motion (see CPLR 3212[a]; Brill v City of New York, 2 NY3d 648, 652 [2004]). A motion court's exercise of its broad discretion in determining whether the moving party has established good cause for delay will not be overturned unless it was improvident (see Daley v M/S Capital NY LLC, 44 AD3d 313, 315 [2007]; Pena v Women's Outreach Network, Inc., 35 AD3d 104, 108 [2006]). Inasmuch as the record establishes that defendants could have easily determined which judge was assigned to the matter (see Giudice v Green 292 Madison, LLC, 50 AD3d 506 [2008]), the court's exercise of its discretion was not improvident.

Homeland Ins. Co. of N.Y. v National Grange Mut. Ins. Co., 2011 NY Slip Op 03805 (App. Div., 2nd 2011)

The Supreme Court improvidently exercised its discretion in denying, as untimely, National Grange's cross motion for summary judgment. While the cross motion was made more than 120 days after the note of issue was filed and, therefore, was untimely (see Brill v City of New York, 2 NY3d 648), "an untimely motion or cross motion for summary judgment may be considered by the court where, as here, a timely motion for summary judgment was made on nearly identical grounds" (Grande v Peteroy, 39 AD3d 590, 591-592; see Whitehead v City of New York, 79 AD3d 858, 860; Lennard v Khan, 69 AD3d 812, 814; Bressingham v Jamaica Hosp. Med. Ctr., 17 AD3d 496, 497). In such circumstances, the issues raised by the untimely cross motion are already properly before the motion court and, thus, the nearly identical nature of the grounds may provide the requisite good cause (see CPLR 3212[a]) to review the merits of the untimely cross motion (see Grande v Peteroy, 39 AD3d at 592). Notably, a court, in deciding the timely motion, may search the record and award summary judgment to a nonmoving party (see CPLR 3212[b]).

Lyebyedyev v Hoffman, 2011 NY Slip Op 03813 (App. Div., 2nd 2011)

Pursuant to the Uniform Civil Term Rules of the Supreme Court, Kings County, the defendant was required to make his motion for summary judgment no later than 60 days after the filing of the note of issue, unless he obtained leave of the court on good cause shown (see Kings County Supreme Court Uniform Civil Term Rules, Part C[6], formerly Rule 13). Here, the defendant moved for summary judgment approximately 90 days after the note of issue was filed. Since the vague and conclusory assertions made by the defendant's attorney regarding the pendency of a motion to strike the note of issue and a delay in the defendant's signing and notarizing of his own deposition transcript were insufficient to constitute good cause, the Supreme Court erred in entertaining the summary judgment motion (see Miceli v State Farm Mut. Auto Ins. Co., 3 NY3d 725; Brill v City of New York, 2 NY3d 648; Cohen-Putnam Agency, Ltd. v Hudson Bldg. Maintenance, Inc., 55 AD3d 653; State Farm Fire & Casualty v Parking Sys. Valet Serv., 48 AD3d 550; Simpson v Tommy Hilfiger U.S.A., Inc., 48 AD3d 389, 392; Pierre v Feldman, 41 AD3d 454, 455).

Jurisdiction

CPLR § 302

Paolucci v Kamas, 2011 NY Slip Op 03823 (App. Div., 2nd 2011)

Personal jurisdiction can be conferred under CPLR 302(a)(1) "even though the defendant never enters New York, so long as the defendant's activities here were purposeful and there is a substantial relationship between the transaction and the claim asserted" (Deutsche Bank Sec., Inc. v Montana Bd. of Invs., 7 NY3d 65, 71, cert denied 549 US 1095; see Fischbarg v Doucet, 9 NY3d 375, 380). Here, however, the Supreme Court properly determined that the number, nature, and quality of the defendants' contacts with New York do not evince purposeful activities by which the defendants availed themselves of the benefits and protections of New York law (see Weiss v Greenberg, Traurig, Askew, Hoffman, Lipoff, Quentel & Wolff, 85 AD2d 861; see also Kimco Exch. Place Corp. v Thomas Benz, Inc., 34 AD3d 433; O'Brien v Hackensack Univ. Med. Ctr., 305 AD2d 199; cf. Fischbarg v Doucet, 9 NY3d 375; Grimaldi v Guinn, 72 AD3d 37).

The Supreme Court also properly determined that personal jurisdiction over the defendants was not conferred pursuant to CPLR 302(a)(3) based upon tortious activity occurring outside New York, causing injury within New York. The plaintiff failed to demonstrate prima facie that the defendants "[1] regularly do[ ] or solicit[ ] business, or engage[ ] in any other persistent course of conduct, or derive[ ] substantial revenue from goods used or consumed or services rendered, in the state," or "[2] expect[ ] or should reasonably expect the act to have consequences in the state and derive[ ] substantial revenue from interstate or international commerce" (CPLR 302[a][3][i], [ii]; see Ingraham v Carroll, 90 NY2d 592; cf. LaMarca v Pak-Mor Mfg. Co., 95 NY2d 210).

Accordingly, the Supreme Court properly granted that branch of the defendants' motion which was pursuant to CPLR 3211(a)(8) to dismiss the complaint for lack of personal jurisdiction.

Moot?

E-Z Eating 41 Corp. v H.E. Newport L.L.C., 2011 NY Slip Op 03652 (App. Div., 1st 2011)

Given that the time to cure the alleged lease default has expired, and that the E-Z Eating 41 Corp. has surrendered possession of the premises, the orders appealed are presently moot (see Matter of Johnson v Pataki, 91 NY2d 214, 222 [1997]; cf. Automated Ticket Sys., Ltd. v Quinn, 90 AD2d 738, 739 [1982] [dismissing claims for declaratory relief relating to contract; "[t]he contract having expired, all of the rights asserted by plaintiff against defendants have accrued, and plaintiff should seek its remedy in an action at law for damages"] [internal quotation marks omitted]). In addition, there is no indication that the appeal should be excepted from the mootness doctrine (see Matter of Hearst Corp. v Clyne, 50 NY2d 707, 714-715 [1980]).

While the general rule in New York is to simply dismiss an appeal which has been rendered moot, vacatur of an order or judgment on appeal has, in circumstances such as those presented here, been held to be an appropriate exercise of discretion where necessary " in order to prevent a judgment which is unreviewable for mootness from spawning any legal consequences or precedent'" (see Funderburke v New York State Dept. of Civ. Serv., 49 AD3d 809, 811 [2008], quoting Matter of Hearst Corp. v Clyne, 50 NY2d at 718).

There is a long dissent.

Privilege and Deposition Transcripts

CPLR R. 3116

CPLR R. 3117

CPLR § 4503 Attorney

PJI 1:76

Ramirez v Willow Ridge Country Club, Inc., 2011 NY Slip Op 03714 (App. Div., 1st 2011)

To the extent plaintiff asserts the verdict was inconsistent, the argument is unpreserved since it was not raised before the jury was discharged (see Barry v Manglass, 55 NY2d 803 [1981]).

Plaintiff's claim that the court improperly charged the jury pursuant to PJI 1:76 that an inference could be drawn from plaintiff's refusal to waive his attorney-client privilege and allow a former paralegal at the firm which represented plaintiff in his Worker's Compensation claim to testify for the defense is without merit (Matter of Commissioner of Social Servs. v Philip De G., 59 NY2d 137, 141 [1983] ["it is now established that in civil proceedings an inference may be drawn against the witness because of his failure to testify or because he exercises his privilege to prevent another from testifying, whether the privilege is constitutional . . . or statutory"]).

Plaintiff also asserts that the court erred in precluding plaintiff's use of the EBT transcript of defendant's witness Alexander Jack — plaintiff's foreman — during cross-examination on the grounds that plaintiff failed to show that he complied with CPLR 3116. Specifically, CPLR 3116(a) provides that a deposition shall be submitted to the witness who can make changes. The witness must then sign the deposition under oath. If the witness fails to sign and return the deposition within 60 days, it may be used as fully as though signed. A failure to comply with 3116(a) results in a party being unable to use the transcript pursuant to CPLR 3117 (see Santos v Intown Assoc., 17 AD3d 564 [2005]; Lalli v Abe, 234 AD2d 346 [1996]). It is the burden of the party proffering the deposition transcript to establish compliance with CPLR 3116(a) (Pina v Flik Intl. Corp., 25 AD3d 772, 773 [2006]).

Here, the court properly precluded the use of Jack's unsigned deposition transcript during Jack's cross-examination inasmuch as plaintiff failed to establish that the transcript was sent to Jack and that he failed to return it within 60 days. Although at one point in his testimony Jack seems to state that he signed the deposition at his lawyer's office, upon further questioning, it appears that he was confused and was actually referring to taking an oath on the date the deposition was taken (see CPLR 3113[b]), rather than on a separate date when the transcript was sent to him for changes and signing pursuant to CPL 3116.

Although there is no time frame as to when a party should send a deposition transcript to a witness for compliance with CPLR 3116(a), a trial court need not adjourn a trial during the cross-examination of a witness so the that the party cross-examining the witness may comply with the section. In any event, since plaintiff does not specify any parts of the deposition that he would have used, any error would appear to be harmless.

Nor has plaintiff demonstrated that any of his other claims regarding the conduct of the trial court were so prejudicial as to deprive him of a fair trial. The rulings on admissibility of evidence were proper and, in any event, any error was harmless.

The bold is mine. The privilege potion is probably the most interesting.

bumped: So you want to go solo

First, let's get this out of the way, I don't know anything about running a firm solo or otherwise. I do, however, know where to find informaton about it.

One of the first stops should be Solosez, a listserv. It's a great resource and everyone there is pretty nice and helpful. All you need to do is set up gmail to receive, send, and index the emails, and you are set. Then stop at Solo Practice University. It's a pay site, but from what I hear it is great. Build a Solo Practice is worth checking out as well (I just saw that it is part of Solo Practice University now). Lawyerist is a good site too. Sometimes it is short on substance, but it does provide some helpful pointers. For example, I found out about Doublepane there (it has nothing to do with lawyering, just making good use of screenspace). If you work in New York the New York Official Reports should be bookmarked. It will keep you up to date on the law and it's free. [edit] Last but not least (and I don't know how I managed to forget to post it) is My Shingle, a tremendous resource that has been around forever.

Seth Godin's blog has nothing to do with lawyering, like Doublepane, but it's worth reading to keep you motivated and keep your mind sharp. So are Mr. Self-Development and Dumb Little Man.

If you want to start a blog, but don't have the time and resources to do it on your own, head over to Real Lawyers Have Blogs. It's what I would use if I had the money. But I don't and I like doing things myself anyway. For interesting business cards take a look at Moo. I've used them before and they are quick and the quality is good. A little pricy though. For CLE on legal writing go to Garner. It isn't cheap, but I think it's worth it.

Finally, and to save you the time of clicking search, here are the google search results for start your own practice. There you will find other blogs, books, websites, etc.

Of course the most important thing is to be a good lawyer. A fancy website, blog, business card, or even a great CLE won't do that for you. It takes exceptionally hard work.

[Edit] almost forgot, you might be interested in the cloud storage options available. Everyone knows, or should know about Dropbox (sign up though that link and I get free storage) which syncs documents and saves deleted docs and versions which is great. I use it and haven't had any problems with it. I've been using their 50 gig option, but you can get 3 gigs or so for free. SugarSync is similar, but you get 5 (free) gigs of storage to start out (I get free storage if you sign up through the link). Personally, I like Dropbox better right now, but I haven't played around with SugarSync too much. Evernote is good and free with a basic account, but different. It isn't necessarily a storage app. And there is box.net, which has a free version but offers more paid storage and is less expensive than the pay options for Dropbox.

I just installed Word 2011 for mac and I think it's a huge improvement over the last version. Also, the mouse and keyboard can make a huge difference.

Well, as it turns out, this wasn't really a post about starting your own firm, but rather a post about me talking about tech shit, again. Finally, if you are working with 1-2 gigs of RAM, add more. It's cheap and easy and it will make your time at the computer less aggraviating.

If anyone thinks I should add something else, feel free to email me.

Law of the case and things wholly unrelated

Today I will start with the no-fault.

Astoria Quality Med. Supply v State Farm Mut. Auto. Ins. Co., 2011 NY Slip Op 50743(U) (App. Term, 2nd, 11th & 13th Jud. Dists. 2011).

Since defendant raised no issue in the Civil Court or on appeal with respect to plaintiff's establishment of its prima facie case, we do not pass on the propriety of the Civil Court's determination with respect thereto. With regard to defendant's contention that the Civil Court violated the law of the case doctrine, even if this contention is correct, this court is not bound by that doctrine and may consider the motion on its merits (see Meekins v Town of Riverhead, 20 AD3d 399 [2005]).

In our opinion, while defendant's proof did not establish as a matter of law that there was a lack of coverage (see Hospital for Joint Diseases v Allstate Ins. Co., 21 AD3d 348 [2005]; Vincent Med. Servs., P.C. v New York Cent. Mut. Fire Ins. Co., 21 Misc 3d 142[A], 2008 NY Slip Op 52442[U] [App Term, 2d & 11th Jud Dists 2008]), it was sufficient to raise a triable issue of fact with respect to the existence of coverage (see Hospital for Joint Diseases, 21 AD3d 348). Contrary to the finding of the Civil Court, defendant was not required to describe in detail the steps which it had taken in searching its records in order to demonstrate that there was no coverage in effect at the time of the accident (see Lenox Hill Radiology v Government Empls. Ins. Co., 28 Misc 3d 141[A], 2010 NY Slip Op 51638[U] [App Term, 1st Dept 2010]). Accordingly, the judgment is reversed, the order granting plaintiff's motion for summary judgment is vacated, and plaintiff's motion for summary judgment is denied.

JT pointed out the law of the case issue. Compare law of the case stemming from Appellate DIvision decisions. For those that are unawares, "The doctrine of law of the case requires a court to follow the determinations of a court of coordinate jurisdiction." Northbay Constr. Co., Inc. v Bauco Constr. Corp., 2009 NY Slip Op 05753 (App. Div., 2nd, 2009). They key phrase here is "coordinate jurisdiction."

Moving on.

One of the best and most moving posts I've read can be found here. It's easy to support long jail sentences for any crime, even the non-violent sort, but when you are up close with the effects, so close that you can see them in the eyes of a child, things can change.

The Appellate Record has me rethinking fonts. I learned a little something about regards. There are twenty novels you can read in one sitting, who knew. I read five or six of them and they all took more than one sitting. In anyone is interested in learing about how legal writing has changed in the past thirty years, go here. And here is a little ditty or writer burnout.

In paper releated news, I've become a fan of the action pad, which I'm pretty sure I mentioned before. Now Levenger is offering it for its circa books. They also have Rhoida paper too. I might just pick one up. Which leads me to another, point, why doesn't anyone ever send me free stuff. I love free stuff.

Goes back to its pre note of issue status

CPLR R. 3404

Tejeda v Dyal, 2011 NY Slip Op 03125 (App. DIv., 1st 2011)

Dismissal of this action pursuant to CPLR 3404 was improper. Here, when the note of issue was previously vacated, the case reverted to its pre-note of issue status, thereby rendering CPLR 3404 inapplicable (see Sellitto v Women's Health Care Specialists, 58 AD3d 828 [2009]; Johnson v Minskoff & Sons, 287 AD2d 233 [2001]). Defendants' avenues to dismiss this pre-note of issue case are limited to CPLR 3216 and 22 NYCRR 202.27. The latter is inapplicable to the facts herein, and defendants failed to comply with the preconditions of the former (see Johnson at 237-238).

Experts

Kranis v Biederbeck, 2011 NY Slip Op 03214 (App. Div., 2nd 2011)

"Although a causally-related emotional injury, alone or in combination with a physical injury, can constitute a serious injury'" within the meaning of Insurance Law § 5102(d) (Villeda v Cassas, 56 AD3d 762, 762, quoting Taranto v McCaffrey, 40 AD3d 626, 627), such injury must be serious and verifiable, and must also be established by objective medical evidence (see Bissonette v Compo, 307 AD2d 673, 674; see also Bovsun v Sanperi, 61 NY2d 219, 231-232; Krivit v Pitula, 79 AD3d 1432, 1432; Chapman v Capoccia, 283 AD2d 798).

Here, the defendant established her prima facie entitlement to judgment as a matter of law by demonstrating that the infant, Ryan Biederbeck (hereinafter the infant), did not sustain a serious injury within the meaning of Insurance Law § 5102(d) (see Licari v Elliott, 57 NY2d 230; Bissonette v Compo, 307 AD2d at 674; cf. Small v Zelin, 152 AD2d 690, 691). The evidence submitted by the defendant in support of her motion established, prima facie, that there was no objective medical evidence to support the plaintiff's claim that the infant suffered from severe emotional distress or post-traumatic stress disorder as a result of the motor vehicle accident in which his father was killed. In opposition, the plaintiff failed to raise a triable issue of fact (see Alvarez v Prospect Hosp., 68 NY2d 320, 324). The plaintiff's experts' affidavits and evaluation report were speculative and conclusory and did not raise a triable issue of fact as to the claim that the infant was suffering from a serious emotional injury (see e.g. Graziano v Cooling, 79 AD3d 803, 804-805).

Sometimes experts aren't necessary.

Love v Rockwell's Intl. Enters., LLC, 2011 NY Slip Op 03219 (App. Div., 2nd 2011)

We reject the appellant's argument that expert medical evidence was necessary to prove that the battery caused the plaintiff's broken jaw. Under the circumstances of this case, "the results of the alleged assault and battery are within the experience and observation of an ordinary layperson" (Breen v Laric Entertainment Corp., 2 AD3d 298, 300; see Lanpont v Savvas Cab Corp., 244 AD2d 208, 212).

3025 and 2106

CPLR R. 3025

CPLR R. 2106

Schwartz v Sayah, 2011 NY Slip Op 03227 (App. Div., 2nd 2011)

Leave to amend pleadings should be freely granted (see CPLR 3025[b]; Thomas Crimmins Contr. Co. v City of New York, 74 NY2d 166, 170) in the absence of prejudice or surprise resulting from the delay (see Hartford Cas. Ins. Co. v Vengroff Williams & Assoc., 306 AD2d 435, 436). Moreover, where the motion is made during trial, as here, the court's discretion in deciding the motion for leave to amend should be discrete, circumspect, prudent, and cautious (see Alrose Oceanside, LLC v Mueller, 81 AD3d 574; Morris v Queens Long Is. Med. Group, P.C., 49 AD3d 827, 828). Leave to amend should not be granted where the proposed amendment is palpably insufficient as a matter of law or is totally devoid of merit (see Jenal v Brown, 80 AD3d 727; Morton v Brookhaven Mem. Hosp., 32 AD3d 381).

In this case, given the appellant's extensive and unexcused delay in seeking leave to amend, the obvious prejudice which the amendment would create in delaying the trial and confusing the proceedings with collateral issues, and the totally meritless nature of the proposed counterclaim given the absence of allegations regarding an intent to deceive on the part of the plaintiff and damages suffered by the appellant (see generally Moormann v Perini & Hoerger, 65 AD3d 1106, 1108; Boglia v Greenberg, 63 AD3d 973, 975; Pui Sang Lai v Shuk Yim Lau, 50 AD3d 758, 759), the Supreme Court properly denied the motion for leave to amend (see Jenal v Brown, 80 AD3d 727; Tarantini v Russo Realty Corp., 273 AD2d 458, 459; County of Suffolk v Caccavalla, 227 AD2d 511, 513). We note in this regard that the submission by the appellant, an attorney, of an affirmation rather than an affidavit in support of the motion was improper (see CPLR 2106), and that document should have been disregarded because it was not in admissible form (see Matter of Nazario v Ciafone, 65 AD3d 1240, 1241; Lessoff v 26 Ct St. Asso.s., LLC, 58 AD3d 610, 611; Finger v Saal, 56 AD3d 606, 607; Pisacreta v Minniti, 265 AD2d 540).

SJ must be viewed in light favorable to the non-moving party

Someone was looking for a case that said this, or something like it, the other day.

CPLR R. 3212

Kutkiewicz v Horton, 2011 NY Slip Op 03215 (App. Div., 2nd 2011)

When viewed in the light most favorable to the nonmoving parties, here the plaintiffs (see Stukas v Streiter,AD3d, 2011 NY Slip Op 01832 [2d Dept 2011]), the evidence Horton submitted in support of the motion established prima facie that the sole proximate cause of the accident was Kutkiewicz's failure to yield the right of way to Horton's vehicle (see Yelder v Walters, 64 AD3d 762, 763-764; Vainer v DiSalvo, 79 AD3d 1023, 1024). In opposition, the plaintiffs failed to demonstrate a triable issue of fact as to whether Horton was at fault in the happening of the accident (see Yelder v Walters, 64 AD3d at 764; Vainer v DiSalvo, 79 AD3d at 1024). Consequently, the Supreme Court properly granted Horton's motion for summary judgment dismissing the complaint.