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SOL defense resurrected (“retracted”) in opp to SJ

CPLR R. 3211(e)

I don't rembember seeing this before

Lewiarz v Travco Ins. Co., 2011 NY Slip Op 02094 (App. Div. 3rd 2011)

Preliminarily, we conclude that Supreme Court properly entertained defendants' statute of limitations argument set forth for the first time in their motion for summary judgment. Plaintiffs correctly note that defendants had neither raised the statute of limitations defense in their answer nor moved to dismiss the complaint on that ground pursuant to CPLR 3211 (a) prior to their summary judgment motion. However, "'the waiver that would otherwise have resulted from [the failure to plead the defense or move to dismiss the complaint premised on such defense] was retracted by assertion of the defense in connection with the summary judgment motion[]'" (Allen v Matthews, 266 AD2d 782, 784 [1999], quoting Adsit v Quantam Chem. Corp., 199 AD2d 899, 900 [1993] [citation omitted]; see Sullivan v American Airlines, Inc., 80 AD3d 600, 602 [2011]).

I think the cite to Sullivan is a stretch. I didn't look up the others.

No 4401 before close of plaintiff’s evidence

CPLR R. 4401 Motion for judgment during trial

Montano v Spagnuolo, 2011 NY Slip Op 01445 (App. Div., 2nd 2011)

After granting the motion of the defendant Stuart Styles (hereinafter the defendant), made during trial, for a new trial, in effect, pursuant to CPLR 4402, the Supreme Court granted the defendant's motion, in effect, pursuant to CPLR 4401 for judgment as a matter of law dismissing the complaint insofar as asserted against him. In addition to the fact that the Supreme Court had previously granted the defendant's motion for a new trial, the motion, in effect, pursuant to CPLR 4401 was made before the close of the plaintiffs' evidence. Accordingly, that motion should not have been entertained (see CPLR 4401; Canteen v City of White Plains, 165 AD2d 856, 857; Goldstein v C.W. Post Ctr. of Long Is. Univ., 122 AD2d 196, 197; Balogh v H.R.B. Caterers, 88 AD2d 136, 141; Levy v Goldman, 252 App Div 781).

properly considered the cross-motion: 2103 2001

CPLR R. 2103 Service of papers

CPLR § 2001 Mistakes, omissions, defects, and irregularities

Jones v LeFrance Leasing Ltd. Partnership, 2011 NY Slip Op 01441 (App. Div., 2nd 2011)

Contrary to Alliance's contention, the Supreme Court properly considered the plaintiffs' cross motion. Although the plaintiffs served their cross motion via media mail, as opposed to first class mail (see CPLR 2103), since Alliance opposed the cross motion on the merits, the defect in service was a mere irregularity that did not result in substantial prejudice to Alliance (see CPLR 2001; Piquette v City of New York, 4 AD3d 402, 403; see also Henry v Gutenplan, 197 AD2d 608).

Consolidaton and sanctions: CPLR § 602

CPLR § 602

Galasso, Langione & Botter, LLP v Galasso, 2011 NY Slip Op 01430 (App. Div., 2nd 2011)

"A motion for consolidation is addressed to the sound discretion of the court, and absent a showing of substantial prejudice by the party opposing the motion, consolidation is proper where there are common questions of law and fact" (RCN Constr. Corp. v Fleet Bank, N.A., 34 AD3d 776, 777). Here, the Supreme Court providently exercised its discretion in denying the motion to consolidate, as there were no common questions of law and fact. The Supreme Court also providently exercised its discretion in granting the cross motion of the plaintiffs in Action Nos. 1 and 2 to impose sanctions against the appellant (see 22 NYCRR 130-1.1[c]; Tornheim v Blue & White Food Prods. Corp., 73 AD3d 749).

Res Judicata, a prior stip, and CPLR 3217

CPLR 3217 Voluntary discontinuance
(c) Effect of discontinuance

Maurischat v County of Nassau, 2011 NY Slip Op 01249 (App. Div., 2nd 2011)

After locating the settlement documents, the defendant moved, inter alia, for summary judgment on res judicata grounds. The Supreme Court denied that branch of the defendant's motion on the ground that since the settlement documents did not state that the prior action was settled "with prejudice," res judicata was inapplicable to bar the second action. " Under res judicata, or claim preclusion, a valid final judgment bars future actions between the same parties on the same cause of action'" (Landau, P.C. v LaRossa, Mitchell & Ross, 11 NY3d 8, 12, quoting Parker v Blauvelt Volunteer Fire Co., 93 NY2d 343, 347; see Wisell v Indo-Med Commodities, Inc., 74 AD3d 1059, Matter of AutoOne Ins. Co. v Valentine, 72 AD3d 953, 955; Pawling Lake Prop. Owners Assn., Inc. v Greiner, 72 AD3d 665, 667; 99 Cents Concepts, Inc. v Queens Broadway, LLC, 70 AD3d 656, 658). "A voluntary discontinuance ordinarily is not a decision on the merits, and res judicata does not bar a [plaintiff] from maintaining another proceeding for the same claim unless the order of discontinuance recites that the claim was discontinued or settled on the merits" (Matter of AutoOne Ins. Co. v Valentine, 72 AD3d at 955). Thus, a stipulation to discontinue an action without prejudice is not subject to the doctrine of res judicata (see Landau, P.C. v LaRossa, Mitchell & Ross, 11 NY3d at 12; Matter of AutoOne Ins. Co. v Valentine, 72 AD3d 953; see also 99 Cents Concepts, Inc. v Queens Broadway, LLC, 70 AD3d at 658; cf. Greenstone/Fontana Corp. v Feldstein, 72 AD3d 890, 893; Pawling Lake Prop. Owners Assn., Inc. v Greiner, 72 AD3d at 667; Liberty Assoc. v Etkin, 69 AD3d 681, 682-683).

Here, the Supreme Court properly found that the doctrine of res judicata did not bar this action since the stipulation discontinuing the plaintiffs' prior action against the defendant, commenced in 1993, was not with prejudice (see Matter of AutoOne Ins. Co. v Valentine, 72 AD3d at 955; North Shore-Long Island Jewish Health Sys., Inc. v Aetna US Healthcare, Inc., 27 AD3d 439, 440; Southampton Acres Homeowners Assn. v Riddle, 299 AD2d 334, 335; Van Hof v Town of Warwick, 249 AD2d 382, 382; Forte v Kaneka Am. Corp., 110 AD2d 81, 85; see generally CPLR 3217[c]).

The defendant's contention that the general release was intended to prevent the litigation of any claim that might have arisen out of the construction of its culvert is improperly raised for the first time before this Court (see Matter of Castillo v Town of Oyster Bay, 70 AD3d 939; Matter of Panetta v Carroll, 62 AD3d 1010).

When does a tort claim become enforcable

Bond v Progressive Ins. Co., 2011 NY Slip Op 01552 (App. Div., 3rd 2011)

This Court has not previously addressed the specific question of the time of accrual of a cause of action against an insurance broker for failing to give proper notice to an insurer of a claim against an insured, but the Appellate Division, First Department has held that such a claim accrues when injury results from the broker's failure, rather than at the time of the failure itself (see Lavandier v Landmark Ins. Co., 26 AD3d 264, 264 [2006]). This Court has previously held that a comparable cause of action arising out of an insurance broker's breach of the common-law duty to procure coverage requested by an insured sounded in tort and did not accrue at the time of the broker's breach, but when the insured's vehicle was involved in an accident for which the coverage was inadequate (see Venditti v Liberty Mut. Ins. Co., 6 AD3d 961, 962 [2004]; see also Chase Scientific Research v NIA Group, 96 NY2d at 30). We perceive no reason to reach a different conclusion in the current circumstances. [*3]

It is well established that a tort claim accrues when it "becomes enforceable, i.e., when all elements of the tort can be truthfully alleged in a complaint" (Kronos, Inc. v AVX Corp., 81 NY2d 90, 94 [1993]). Accordingly, when damage is an essential element of a tort, the claim does not accrue at the time of the defendant's wrongful act or the plaintiff's discovery of the injury, but when harm is sustained (see IDT Corp. v Morgan Stanley Dean Witter & Co., 12 NY3d 132, 140 [2009]; Kronos, Inc. v AVX Corp., 81 NY2d at 94; Schultes v Kane, 50 AD3d 1277, 1278 [2008]). The injury underlying plaintiff's claim against HEG was not sustained at the time of HEG's alleged breach, but when that breach later caused harm, in the form of the judgment entered against the O'Rourkes. "Damages are a necessary element of a negligence claim which must be pleaded and proven" (Siler v Lutheran Social Servs. of Metro. N.Y., 10 AD3d 646, 648 [2004] [citations omitted]). The O'Rourkes could not have pleaded or proven any harm arising from HEG's alleged breach of duty prior to the April 2008 judgment, and any negligence claim they might have sought to assert against HEG would have been subject to dismissal as premature (see Cutro v Sheehan Agency, 96 AD2d 669 [1983]; see also Matter of Martinez v State of New York, 62 AD3d 1225, 1226-1227 [2009]). As the O'Rourkes' claim against HEG, later assigned to plaintiff, did not become enforceable until the judgment against them was entered, plaintiff's action was timely, and Supreme Court properly denied HEG's motion to dismiss the complaint against it.

Notice of appeal limits review

State Farm Mut. Auto. Ins. Cos. v Jaenecke, 2011 NY Slip Op 01219 (App. Div., 4th 2011)

Plaintiff commenced this action seeking a declaration that it is not obligated to defend or indemnify Zachary J. Jaenecke and Peter J. Jaenecke (defendants) in the underlying personal injury action commenced by defendants Gary L. Coons and Ann M. Coons. We note at the outset that the challenge by defendants to that part of the order and judgment declaring that "any bodily injury or damage to Gary L. Coons and Ann M. Coons was not caused by an accident resulting from the ownership, maintenance or use of the Jaenecke vehicle" is not properly before us. "An appeal from only part of an order [and judgment] constitutes a waiver of the right to appeal from other parts [thereof]" (Johnson v Transportation Group, Inc., 27 AD3d 1135, 1135). Here, defendants limited their notice of appeal to that part of the order and judgment denying their motion during trial seeking a declaration that plaintiff was obligated to defend and indemnify them based on plaintiff's alleged failure to comply with Insurance Law § 3420 (d), and thus our review is limited to that issue (see Matter of Violet Realty, Inc. v City of Buffalo Planning Bd., 20 AD3d 901, 903-904, lv denied 5 NY3d 713). We conclude that Supreme Court properly denied the motion and determined that plaintiff "was not required by Insurance Law § 3420 (d) to issue a disclaimer in a timely fashion because its denial of coverage was based upon a lack of coverage and not a policy exclusion" (Matter of Liberty Mut. Ins. Co. v Goddard, 29 AD3d 698, 699).

CPLR 2101 and translations. Also No SJ with out issue being joined (this time)

CPLR R. 2101 Form of papers

CPLR R. 3212

Reyes v Arco Wentworth Mgt. Corp., 2011 NY Slip Op 01988 (App. Div., 2nd 2011)

This Court has held that the absence of a translator's affidavit, required of foreign language witnesses, renders the witness's English affidavit facially defective and inadmissible (see Martinez v 123-16 Liberty Ave. Realty Corp., 47 AD3d 901, 902). The requirement of CPLR 2101(b) that affidavits of non-English speaking witnesses be accompanied by a translator's affidavit setting forth the translator's qualifications and the accuracy of the English version submitted to the Court makes sense. Summary judgment is a drastic remedy made in lieu of a trial which resolves the case as a matter of law (see Andre v Pomeroy, 35 NY2d 361, 364). Parties opposing a motion for summary judgment are required to proffer evidence that is in admissible form, with rare exceptions not applicable here. A witness at trial would not be permitted to testify in a foreign language, or to proffer documents in a foreign language, without the benefit of a sworn English language translation (see Quispe v Leml & Wolff, Inc., 266 AD2d 95, 96; cf. People v Watkins, 12 AD3d 165, 166), and there is no valid reason why a more relaxed evidentiary standard should govern summary judgment applications. Accordingly, the plaintiff's English-language affidavit, without a corresponding affidavit from a qualified translator, cannot be considered in opposition to Ramapo's motion.

Ramapo's argument about the inadmissibility of the plaintiff's English-language affidavit in opposition, while correct, does not change the outcome of this appeal. Ramapo proffered the plaintiff's translated deposition transcript in reply papers, ostensibly to show the plaintiff's need at that time of a translator. While documents which are submitted for the first time in reply cannot be used by a movant to meet the prima facie burden of proof for summary judgment (see Tingling v C.I.N.H.R., Inc., 74 AD3d 954, 956; Yeum v Clove Lakes Health Care & Rehabilitation Ctr., Inc., 71 AD3d 739; Edwards v Great Atl. & Pac. Tea Co., Inc., 71 AD3d 721; Rengifo v City of New York, 7 AD3d 773), here, the deposition transcript was not proffered by Ramapo to meet its prima facie burden. Instead, the transcript of the plaintiff's translated deposition, which sufficiently mirrors his non-compliant affidavit (see CPLR 2101[b]), was proffered to address perceived deficiencies in the plaintiff's opposition to summary judgment. The transcript independently raised questions of fact so as to defeat Ramapo's own motion. Ramapo, as the party proffering the deposition transcript in its reply, cannot object to this Court's consideration of the entirety of the exhibit, including those portions that raise triable issues of fact sufficient to defeat summary judgment.

Contrary to Ramapo's contention set forth in footnote eight of its brief, that the Supreme Court failed to disregard the plaintiff's inadmissible English language affidavit, a close reading of the order appealed from does not demonstrate that the Supreme Court relied on the plaintiff's inadmissible affidavit at all. The order describes facts and allegations to which the "plaintiff testified." Such "testimony," as described, may carefully and appropriately refer merely [*5]to the plaintiff's deposition which, as noted, is admissible.
IV.Appeal by Arco

Arco separately moved for summary judgment dismissing the complaint. The Supreme Court denied the motion on the ground that since issue had not yet been joined between Arco and the plaintiff, the motion was premature (see CPLR 3212[a]). Furthermore, the Supreme Court declined to treat what was in actuality a pre-answer motion to dismiss as a motion for summary judgment. We affirm the Supreme Court's determination (see CPLR 3212[a]; City of Rochester v Chiarella, 65 NY2d 92, 101; Shaibani v Soraya, 71 AD3d 1121).

Supplemental BP is not a disclosure device: CPLR § 3102

CPLR § 3102 Method of obtaining disclosure

Kellerson v Asis, 2011 NY Slip Op 01191 (App. Div., 4th 2011)

We reject defendant's further contention that plaintiffs improperly served a supplemental bill of particulars after the note of issue was filed and defendant had moved for summary judgment dismissing the complaint. "A party may serve a supplemental bill of particulars with respect to claims of continuing special damages and disabilities without leave of court at any time, but not less than [30] days prior to trial," so long as the continuing damages and disabilities are an anticipated sequelae of the injuries described in the original bill of particulars (CPLR 3043 [b]; see Tate v Colabello, 58 NY2d 84, 86-87). Here, plaintiffs' supplemental bill of particulars merely expanded upon the continuing disabilities alleged in the original bill of particulars and did not set forth a new legal theory of liability or new injuries (see Tate, 58 NY2d at 87). Early on in treatment, plaintiff's orthopedic surgeon specifically mentioned the possibility of a meniscal tear, and plaintiffs disclosed that statement in the original bill of particulars. Defendant contends that plaintiffs were not permitted to serve a supplemental bill of particulars after she had moved for summary judgment because her motion effectively stayed disclosure (see CPLR 3214 [b]). That contention is without merit inasmuch as a supplemental bill of particulars is not a disclosure device pursuant to CPLR 3102 (a).

Expert Testimony

Rowe v Fisher, 2011 NY Slip Op 01721 (App. Div. 1st 2011)

The motion court properly precluded plaintiffs' expert testimony on chelation because the expert's theories were contrary to the medical literature on the subject and therefore "unreliable" (Parker v Mobile Oil Corp., 7 NY3d 434, 447 [2006]).

Furthermore, the court properly precluded the testimony pursuant to Frye v United States (293 F 1013 [1923]). Although we find that plaintiffs' theory that chelating Carol at the start of her third trimester would have prevented or reduced the claimed injuries to the infant plaintiff was a novel theory subject to a Frye analysis, plaintiffs failed to rebut defendant's showing that this theory was not generally accepted within the relevant scientific community. Plaintiffs' [*2]position was based solely on their expert's own unsupported beliefs (see Marso v Novak, 42 AD3d 377, 378-379 [2007], lv denied 12 NY3d 704 [2009]).

Williams v Hooper, 2011 NY Slip Op 01683 (App. Div. 1st 2011)

The expert's opinion about this safety cushion was supported by nothing (see Jones v City of New York, 32 AD3d 706, 707 [2006] [rejecting expert's opinion regarding ostensible safety practice because "no support was offered for th(e) assertion, either in the form of a published industry or professional standard or in the form of evidence that such a practice had been generally accepted in the relevant industry"]). But as defendant Transit Authority failed to object to the expert's testimony, the point must be conceded to plaintiff for purposes of this appeal ^[FN1]