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R. 2221

Vazquez v JRG Realty Corp., 2011 NY Slip Op 01349 (App. Div., 1st 2011)

No appeal lies from the denial of a motion to reargue (DiPasquale v Gutfleish, 74 AD3d 471 [2010]). Supreme Court also properly denied the motion to renew, as the expert affidavit proffered on renewal was available to plaintiffs prior to the summary judgment motion being fully submitted (see e.g. Estate of Brown v Pullman Group, 60 AD3d 481 [2009], lv dismissed and denied 13 NY3d 789 [2009]). In any event, plaintiffs' expert affidavit was speculative, conclusory, and not based on foundational facts, i.e., an exact measurement of the purported defect, and thus was insufficient to create an issue of fact (Pappas v Cherry Cr., Inc., 66 AD3d 658 [2009]).

CPLR § 3012; Judiciary Law § 470

CPLR § 3012 Service of pleadings and demand for complaint
(d) Extension of time to appear or plead

Judiciary Law § 470

Empire Healthchoice Assur., Inc. v Lester, 2011 NY Slip Op 01412 (App. Div., 1st 2011)

Judiciary Law § 470 requires an attorney admitted to practice in New York who is not a New York resident to maintain an office in this state for the practice of law (see Kinder Morgan Energy Partners, LP v Ace Am. Ins. Co., 51 AD3d 580 [2008]; Lichtenstein v Emerson, 251 AD2d 64 [1998]). Failure of counsel to maintain a local office requires striking of a pleading served by such attorney, without prejudice (see Kinder Morgan, 51 AD3d at 580; Neal v Energy Transp. Group, 296 AD2d 339 [2002]). Thus the court was correct in striking defendants' answer.

The court also properly granted defendants' cross motion pursuant to CPLR 3012(d) for an extension of time to answer (Nason v Fisher, 309 AD2d 526 [2003]). Plaintiff's contention that Judiciary Law § 470 barred the motion court from extending defendant's time to answer is incorrect, since the striking of a pleading under that statute is without prejudice (see Kinder Morgan, 51 AD3d at 580; Neal v Energy Transp. Group, 296 AD2d at 339). Defendants' delay in serving a proper answer was short and the defect in the original answer was attributable to law office failure by defendants' original attorney. Plaintiff was not prejudiced by any delay because the original defective answer was timely served (see Gazes v Bennett, 70 AD3d 579 [2010]). Defendants were not required to demonstrate a meritorious defense in order to be granted relief under CPLR 3012(d) (see Nason, 309 AD2d at 526; DeMarco v Wyndham Intl., 299 AD2d 209 [2002]; Mufalli v Ford Motor Co., 105 AD2d 642 [1984]).

CPLR R. 3025(c): Amend the pleadings to conform to the facts

CPLR R. 3025(c)

Rodriguez v Panjo, 2011 NY Slip Op 01259 (App. Div., 2nd 2011)

In August 2009 the plaintiff moved pursuant to CPLR 3025(c) for leave to amend the complaint to conform to the evidence, and the defendants moved for summary judgment dismissing the complaint. In the order appealed from, the Supreme Court denied the plaintiff's motion and granted the defendants' motion. We reverse.

"Leave to conform a pleading to the proof pursuant to CPLR 3025(c) should be freely granted absent prejudice or surprise resulting from the delay" (Alomia v New York City Tr. Auth., 292 AD2d 403, 406; see Worthen-Caldwell v Special Touch Home Care Serv., Inc., 78 AD3d 822). Mere lateness is not a barrier to amendment, but it will preclude amendment if it is coupled with significant prejudice to the other side (Worthen-Caldwell v Special Touch Home Care Serv., Inc., 78 AD3d at 822). Here, the Supreme Court improvidently exercised its discretion by denying the plaintiff's motion for leave to amend the complaint to conform to the evidence as Panjo, having himself been involved in the accident and having spoken to Estaban at the scene, was fully aware of the facts and that the accident involved three vehicles, not two vehicles as originally alleged in the complaint. Furthermore, the details of how the accident occurred, the number of vehicles involved, the make and year of the vehicle which hit the plaintiff's vehicle, and who operated the vehicles, were fully explored at Panjo's deposition. Accordingly, the defendants would not have suffered surprise or prejudice by an amendment of the complaint to conform to the evidence (see Rizzo v Kay, 79 AD3d 1001; Alomia v New York City Tr. Auth., 292 AD2d at 406).

Account (un)Stated

American Express Centurion Bank v Cutler, 2011 NY Slip Op 01227 (App. Div., 2nd 2011)

"An account stated is an agreement between [the] parties to an account based upon prior transactions between them with respect to the correctness of the account items and balance" (Jim-Mar Corp. v Aquatic Constr., 195 AD2d 868, 869; see Interman Indus. Prods. v R.S.M. Electron Power, 37 NY2d 151, 153-154; Citibank [S. D.] v Jones, 272 AD2d 815). An agreement may be implied where a defendant retains bills without objecting to them within a reasonable period of time, or makes partial payment on the account (see Cohen Tauber Spievak & Wagner, LLP v Alnwick, 33 AD3d 562; Morrison Cohen Singer & Weinstein, LLP v Waters, 13 AD3d 51, 52; Jovee Contr. Corp. v AIA Envtl. Corp., 283 AD2d 398, 400; Citibank [S. D.] v Jones, 272 AD2d 815; Schneider Fuel Oil v DeGennaro, 238 AD2d 495, 496).

Here, the plaintiff failed to make a prima facie showing of its entitlement to judgment as a matter of law on the cause of action to recover on an account stated. The plaintiff's evidentiary submissions did not include the monthly credit card billing statements which form the basis of its cause of action to recover on an account stated, and the affidavit of the plaintiff's employee contained no facts showing that the defendant retained the subject billing statements for an unreasonable period of time without objecting to them, or that he made partial payment on the billing statements (see Citbank [S.D.] N.A. v Goldberg, 24 Misc 3d 143[A]; Discover Bank v Williamson, 14 Misc 3d 136[A]; cf. American Express Centurion Bank v Williams, 24 AD3d 577). Furthermore, the plaintiff's "prima facie burden cannot be met by evidence submitted for the first time in its reply papers" (Yeum v Clove Lakes Health Care & Rehabilitation Ctr., Inc., 71 AD3d 739, 739; see [*2]Tingling v C.I.N.H.R., Inc., 74 AD3d 954; David v Bryon, 56 AD3d 413, 414-415). Accordingly, the Supreme Court should have denied that branch of the plaintiff's motion which was for summary judgment on the cause of action to recover on an account stated, regardless of the sufficiency of the opposing papers (see Winegrad v New York Univ. Med. Ctr., 64 NY2d 851, 853; Encarnacion v Smith, 70 AD3d 628, 630; David v Bryon, 56 AD3d at 414).

CPLR R. 4518(a)

CPLR R. 4518 Business records

CPLR § 2002 Error in ruling of court

Rodriguez v New York City Tr. Auth., 2011 NY Slip Op 01258 (App. Div., 2nd 2011)

The defendant's contention that the Supreme Court improperly denied the admission of a certain photograph of the upper landing of the subject stairway taken some five years after the accident is without merit. The defendant failed to establish a proper foundation by showing that it was a fair and accurate representation of the condition of the landing on the date of the accident (see Moore v Leaseway Transp. Corp., 49 NY2d 720, 723; People v Byrnes, 33 NY2d 343, 347-349; Saporito v City of New York, 14 NY2d 474, 476-477; Leven v Tallis Dept. Store, 178 AD2d 466; Prince, Richardson on Evidence § 4-212, at 149 [Farrell 11th ed]).

We agree with the defendant that the Supreme Court erred in precluding it from introducing into evidence two accident reports. The accident reports were made in the regular course of business and were admissible under CPLR 4518(a) (see Galanek v New York City Tr. Auth., 53 AD2d 586; Bracco v MABSTOA, 117 AD2d 273, 277; Klein v Benrubi, 60 AD2d 548, 548; Bishin v New York Cent. R.R. Co., 20 AD2d 921). A business record is admissible even though the person who prepared it is available to testify to the acts or transactions recorded (see Meiselman v Crown Hgts. Hosp., 285 NY 389, 397; Clarke v New York City Tr. Auth., 174 AD2d 268; Napolitano v Branks, 141 AD2d 705, 706). Accordingly, the accident reports should have been admitted (see Klein v Benrubi, 60 AD2d at 548). However, the error does not require reversal since the precluded evidence was cumulative of testimony already adduced before the jury during the defendant's case (see CPLR 2002; Woody v Foot Locker Retail, Inc., 79 AD3d 740; Sweeney v Peterson, 24 AD3d 984; Tannen v Long Is. R.R., 215 AD2d 745).

Experts

Reilly v Ninia, 2011 NY Slip Op 01451 (App. Div., 2nd 2011)

Furthermore, the hospital's expert testified that he "would have to think about" whether the administration of Pitocin should have been discontinued at the time of the three-minute deceleration of the fetal heartbeat, and, responded "maybe" to a similar question as to whether the Pitocin should have been discontinued. Thus, with respect to the claim that the labor and delivery nurse departed from good and accepted practice by failing to discontinue the administration of Pitocin, the hospital's expert credibly testified against the hospital's interest (cf. Cicione v Meyer, 33 AD3d at 646).

As the hospital's case was premised in large measure on opinion evidence which, in turn, was based on allegations of fact that were not supported by the trial record, we must conclude that the evidence preponderated in favor of the plaintiffs, and that their evidentiary position was particularly strong compared to that of the hospital. Therefore, substantial justice has not been done, the jury could not have reached its verdict in favor of the hospital on any fair interpretation of the evidence, and the verdict was, thus, contrary the weight of the evidence.

***

As there will be a new trial with respect to the hospital, we observe that the trial court correctly determined several evidentiary issues that arose during the trial. The trial court correctly determined that the former director of the hospital's Department of Obstetrics and Gynecology could not be compelled to provide expert testimony. That doctor was not named as a defendant, had no role whatsoever in the treatment of the mother and baby in this case, and was not subject to any liability in this case (see Jones v Cummings, 55 AD3d 677, 678-679; Piervinanzi v Bronx Cross County Med. Group, 244 AD2d 396, 396-397; Fristrom v Peekskill Community Hosp., 239 AD2d 315; cf. Latiff v Wyckoff Hgts. Hosp., 144 AD2d 650; Wilson v McCarthy, 57 AD2d 617). The trial court also correctly prohibited the plaintiffs from attempting to impeach the hospital's expert with a medical journal article which the expert had not accepted as authoritative (see People v Rose, 41 AD3d 742, 743; Lipschitz v Stein, 10 AD3d 634, 635; Labate v Plotkin, 195 AD2d 444, 445). Finally, the trial court providently exercised its discretion in permitting the plaintiffs to use one excerpt from the deposition transcript of the labor and delivery nurse, but in precluding the use of an additional excerpt in cross examining the hospital's obstetrical expert, as the plaintiffs could and should have elicited testimony concerning the issue addressed by the precluded excerpt during the direct examination of the plaintiffs' obstetrical expert (see Feldsberg v Nitschke, 49 NY2d 636; Pryce v Gilchrist, 51 AD3d 425, 426).

Standing and Res Judicata

Springwell Nav. Corp. v Sanluis Corporacion, S.A., 2011 NY Slip Op 01353 (App. Div., 1st 2011)

Since this Court's dismissal of the prior action for lack of standing (46 AD3d 377 [2007]) was not a final determination on the merits for res judicata purposes, plaintiff is not precluded from reasserting the same claims based on newly conferred rights that cured the lack of standing (see e.g. Pullman Group v Prudential Ins. Co. of Am., 297 AD2d 578 [2002], lv dismissed 99 NY2d 610 [2003]). Nor, for collateral estoppel purposes, is the issue raised in this action identical to the issue "necessarily decided" in the prior appeal (see Matter of Hofmann, 287 AD2d 119, 123 [2001]). The issue decided against plaintiff in the prior appeal was whether plaintiff had standing as a beneficial owner to sue on either the indenture or the note. The issue now before us is whether plaintiff has standing, as the registered holder's authorized appointee, to bring suit on the indenture.

As the indenture expressly permits the registered holder to assign its right to institute any legal action to an appointed proxy, and plaintiff has obtained the registered holder's authorization to sue in its stead, plaintiff's status has changed, and its prior lack of capacity has been cured (see [*2]e.g. Allan Applestein Trustee F/B/O D.C.A. Grantor Trust v Province of Buenos Aires, 415 F3d 242 [2d Cir 2005]).

Not a thing. I thought I did, but I don't. For a couple of minutes I really thought I had something, something interesting. I didn't. I was going to talk about books, and movies, and t.v. shows, and westerns in general. Not real westerns. Shows like justified; movies like True Grit; and books like Blood Meridian. I almost did. The thoughts were there, but the words were not.

It's hard to find meaning in anything. And maybe it's just dumb to look for it in the first place. I'm usually pretty happy when I find it and I find I find it in the weirdest places. I'm pretty sure I found it in a sitcom once or twice. Never in facebook or twitter. Not here. Never found it at the bottom of a bottle. I've taken a good hard look at the bottom of a few. I caught a glimmer of it at the office once.

Not in the company of others. The search for meaning is a solitary pursuit.

Sometimes it's getting up in the morning, looking out the window, and saying fuck you to no one in particular.

Happy valentines day.

CPLR § 5511 and CPLR § 5701

CPLR § 5511 Permissible appellant and respondent

Santos v County of Westchester, 2011 NY Slip Op 01013 (App. Div., 2nd 2011)

The appeal by the County defendants must be dismissed. Since they did not oppose the City's cross motion before the Supreme Court, they are not aggrieved by the order appealed from (see CPLR 5511).

CPLR § 5701 Appeals to appellate division from supreme and county courts

Wright v Stam, 2011 NY Slip Op 01020 (App. Div., 2nd 2011)

ORDERED that the appeal from so much of the order as granted that branch of the motion which was to appoint a guardian ad litem on the plaintiff's behalf only to the extent of directing a hearing on that issue is dismissed, as no appeal lies as of right from an order directing a hearing to aid in the determination of a motion, and we decline to grant leave to appeal (see CPLR 5701[a][2]; Zoref v Glassman, 44 AD3d 1036); and it is further,

ORDERED that the appeal from so much of the order as, sua sponte, directed the plaintiff to undergo a psychological evaluation is dismissed, as no appeal lies as of right from an order which does not determine a motion made on notice, and we decline to grant leave to appeal (see CPLR 5701[a][2]; Ciprijan v Stone, 65 AD3d 659); and it is further,

The bold is mine.

Inadmissible hearsay not enough to defeat SJ when that’s all there is

Roche v Bryant, 2011 NY Slip Op 01011 (App. Div., 2nd 2011)

The plaintiff failed to raise a triable issue of fact in opposition. The only evidence offered by the plaintiff to demonstrate that, prior to this incident, the dog actually exhibited any fierce or hostile tendencies was inadmissible hearsay (see Stock v Otis El. Co., 52 AD3d 816, 817 [inadmissible hearsay "is insufficient to bar summary judgment if it is the only evidence submitted" (internal quotation marks omitted)]; Rodriguez v Sixth President, Inc., 4 AD3d 406; Palumbo v [*2]Nikirk, 59 AD3d at 691; Sers v Manasia, 280 AD2d at 540; Lugo v Angle of Green, 268 AD2d 567).