Author: DMG

Judicial estoppel

Ferreira v Wyckoff Hgts. Med. Ctr., 2011 NY Slip Op 00641 (App. Div., 2nd 2011)

WHMC's contention that the doctrine of judicial estoppel barred the plaintiff from arguing at trial that the decedent was stillborn is without merit. The doctrine of judicial estoppel will [*2]be applied when a party has secured a judgment in his or her favor by adopting the prior position, and then has sought to assume a contrary position simply because his or her interests have changed (see Matter of One Beacon Ins. Co. v Espinoza, 37 AD3d 607; Matter of State Farm Mut. Auto. Ins. Co. v Allston, 300 AD2d 669; Bono v Cucinella, 298 AD2d 483). Although the plaintiff previously argued that the decedent was born alive, the plaintiff never obtained a judgment in her favor by adopting that position. Therefore, judicial estoppel did not bar the plaintiff from arguing at trial that the decedent was stillborn.

The bold is mine.

SJ motion in lieu of complaint: CPLR § 3213

CPLR § 3213 Motion for summary judgment in lieu of complaint

Bloom v Lugli, 2011 NY Slip Op 00635 (App. Div., 2nd 2011)

Pursuant to CPLR 3213, a party may bring a motion in lieu of complaint when the action is "based upon an instrument for the payment of money only or upon any judgment." If an instrument contains an unconditional promise to pay a sum certain over a stated period of time, it is considered an instrument for the payment of money only (see Comforce Telecom, Inc. v Spears Holdings Co., Inc., 42 AD3d 557; Gregorio v Gregorio, 234 AD2d 512).

 

"The instrument does not qualify if outside proof is needed, other than simple proof of nonpayment or a similar de minimis deviation from the face of the document" (Weissman v Sinorm Deli, 88 NY2d 437, 444; see Ro & Ke, Inc. v Stevens, 61 AD3d 953; Stallone v Rostek, 27 AD3d 449). The test as to when a document qualifies as an instrument for the payment of money only under CPLR 3213 is as follows:

"Where the instrument requires something in addition to defendant's explicit promise to pay a sum of money, CPLR 3213 is unavailable. Put another way, a document comes within CPLR 3213 if a prima facie case would be made out by the instrument and a failure to make the payments called for by its terms.'"

(Weissman v Sinorm Deli, 88 NY2d at 444 [citations omitted]; see Stallone v Rostek, 27 AD3d 449, 450; Larkfield Manor v KBK Enters., 5 AD3d 444, 444-445; Eisenberg v HSBC Payment Serv. (USA), 307 AD2d 950, 951).

Here, the plaintiff failed to establish that the subject agreement was an instrument for the payment of money only. The terms of the sale of the plaintiff's interest in the joint venture to the defendants was subject to the continuation by the plaintiff of his legal representation of the defendants and the joint venture. Therefore, outside proof would be required to determine if the plaintiff satisfied his obligations pursuant to the agreement (see Ippolito v Family Medicine of Tarrytown & Ossining, LLP, 46 AD3d 752, 753).

 

The Supreme Court failed to interpret the agreement as drafted and improperly severed the plaintiff's obligation to continue providing legal representation from the remainder of the agreement. Having done so, the Supreme Court erred in granting judgment in favor of the plaintiff on his motion brought pursuant to CPLR 3213 (see Ippolito v Family Medicine of Tarrytown & Ossining, LLP, 46 AD3d 752; Stallone v Rostek, 27 AD3d 449).

The bold is mine

Overbroad discovery demands

CPLR § 4504. Physician, dentist, podiatrist, chiropractor and nurse

Azznara v Strauss, 2011 NY Slip Op 00634 (App. Div., 2nd 2010)

Although the plaintiff's pharmacy and health insurance records may properly be discovered (see CPLR 4504; Neferis v DeStefano, 265 AD2d 464, 466; Moore v Superior Ice Rink, 251 AD2d 305), the defendants' demand with respect to those two items, as currently propounded, is patently overbroad and burdensome (see Gilman & Ciocia, Inc. v Walsh, 45 AD3d 531; Bongiorno v Livingston, 20 AD3d 379, 382; Bettan v Geico Gen. Ins. Co., 296 AD2d 469, 471; Holness v Chrysler Corp., 220 AD2d 721, 722). Accordingly, that branch of the defendants' motion which was to compel the plaintiff to provide authorizations for the release of all of his pharmacy and health insurance records was properly denied.

 

The bold is mine.

CPLR R. 3025(b): Amendment on the eve.

I know someone is researching this issue right now. You're welcome.  I really could have used this case a few weeks ago. 

CPLR R 3025 Amended and supplemental pleadings

Alrose Oceanside, LLC v Mueller, 2011 NY Slip Op 00631 (App. Div., 2nd 2011)

Additionally, the Supreme Court providently exercised its discretion in denying that branch of the plaintiffs' motion which was for leave to amend the complaint to add a cause of action on behalf of Alrose based on concerted action liability insofar as asserted against the infant defendant. "Although leave to amend a pleading shall be freely given' in the absence of surprise or prejudice, the determination whether to grant such leave is within the court's discretion, and the [*2]exercise of that discretion will not be lightly disturbed" (Comsewogue Union Free School Dist. v Allied-Trent Roofing Sys., Inc., 15 AD3d 523, 524, quoting CPLR 3025[b]; see Fischer v RWSP Realty, LLC, 53 AD3d 595, 596). "[W]here the application for leave to amend is made long after the action has been certified for trial, judicial discretion in allowing such amendments should be discrete, circumspect, prudent, and cautious'" (Morris v Queens Long Is. Med. Group, P.C., 49 AD3d 827, 828, quoting Clarkin v Staten Is. Univ. Hosp., 242 AD2d 552, 552). "Moreover, when . . . leave is sought on the eve of trial, judicial discretion should be exercised sparingly" (Morris v Queens Long Is. Med. Group, P.C., 49 AD3d at 828; see American Cleaners, Inc. v American Intl. Specialty Lines Ins. Co., 68 AD3d 792; Comsewogue Union Free School Dist. v Allied-Trent Roofing Sys., Inc., 15 AD3d at 525). In light of Alrose's delay in moving for leave to amend its complaint to add a cause of action based on concerted action liability insofar as asserted against the infant defendant, and in light of the failure of Alrose to set forth a reasonable excuse for the delay in seeking such relief, we discern no reason to disturb the Supreme Court's determination on this issue (see American Cleaners, Inc. v American Intl. Specialty Lines Ins. Co., 68 AD3d 792; Sampson v Contillo, 55 AD3d 591; Fischer v RWSP Realty, LLC, 53 AD3d at 596-597; Cohen v Ho, 38 AD3d 705, 706; Comsewogue Union Free School Dist. v Allied-Trent Roofing Sys., Inc., 15 AD3d at 525).

Green v New York City Hous. Auth., 2011 NY Slip Op 01436 (App. Div., 2nd 2011)

While leave to amend a bill of particulars is ordinarily to be freely given in the absence of prejudice or surprise (see CPLR 3025[b]), when leave is sought on the eve of trial, judicial discretion should be exercised sparingly (see Torres v Education Alliance, 300 AD2d 469, 470; Danne v Otis El. Corp., 276 AD2d 581, 582; Reape v City of New York, 272 AD2d 533). Furthermore, where there has been an inordinate delay in seeking leave to amend to include a new injury, the plaintiff must establish a reasonable excuse for the delay and submit an affidavit to establish the merits of the proposed amendment (see Itzkowitz v King Kullen Grocery Co., Inc., 22 AD3d 636, 637; Fuentes v City of New York, 3 AD3d 549, 550; Smith v Plaza Transp. Ambulance Serv., 243 AD2d 555). The plaintiffs failed to establish a reasonable excuse for the delay. Further, the purported affirmation of the plaintiffs' expert physician submitted with the purpose of demonstrating that the "post concussion syndrome and neuropsychological impairment secondary to cerebral dysfunction" were causally linked to the infant plaintiff's accident "provided no data to indicate the basis [for the physician's] conclusion [and] was therefore speculative, conclusory, and lacking in probative value" (Paladino v Time Warner Cable of N.Y. City, 16 AD3d 646, 648; see Itzkowitz v King Kullen Grocery Co., Inc., 22 AD3d at 637; Youthkins v Cascio, 298 AD2d 386, affd 99 NY2d 638; Smith v Plaza Transp. Ambulance Serv., 243 AD2d 555).

The bold is mine.

 

This was going to be a post about snow.

Snow and the music I've been listening to.  But I got distracted and the moment passed.

"moral schizophrenia"

Interesting change of topic right?  I wish I could take credit for that phrase.  I was reading a post on "the joy[s] of anarchy," and three quarters of the way through I ran into the phrase.  I ran into it and stopped. Not since murum aries attigit1 has a phrase stopped me dead in my tracks. For sure the context is important, but the phrase stands on its own.  You don't need the context; it just makes sense.

There is a longer, better, post in here somewhere, but I'm not writing it today. 

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1. I mentioned the phrase a while ago in an equally pointless post.  I found it through popehat who–i don't really remember, but I'm pretty sure–linked to the legal satyricon whose owner wrote the letter.  Sure I cite the same sites over and over again, but that's what I read.  I have a short attention span and they keep it.  By now you are problably trying to decide whether it's worth it to google the phrase.  I'll save you the trouble.  

 

Strange relief

Bedford Med. Care, P.C. v Encompass Ins. Co., 2011 NY Slip Op 21023 (Civ Ct City NY, Kings County)

In general, a default judgment is a presumptively valid judgment entitled to enforcement, unless or until reversed or set aside (All Terrain Properties, Inc. v Hoy, 265 AD2d 87 [1st Dept 2000]; but see also Fleet Business Credit, LLC v Michael P Costelloe, Inc., 19 Misc 3d 29 [App Term 2d & 11th Jud Dists 2008] [limited exception for out-of-state defaults where defendant alleges a lack of personal jurisdiction in the prior action]). To avoid enforcement of a default judgment, a defendant must move to vacate and offer both a reasonable excuse for its default and a meritorious defense to the underlying action (CPLR 317). In the court's view, a declaratory judgment, issued on default, should be treated in the same manner. Plaintiff's proper recourse, if it wishes to proceed with this action, is to move to vacate the default judgment in the declaratory judgment action by offering a reasonable excuse for its failure to appear and a meritorious defense to that action.

The court is empowered to stay its own proceedings "[e]xcept where otherwise prescribed by law…in a proper case, upon such terms as may be just" (CPLR 2201). One instance in which the staying of a given action is often deemed appropriate is when another (collateral) action is pending (see CPLR 2201, Comment 4 [discussing implied stay provision on a motion to dismiss pursuant to CPLR 3211(a)(4)]). Since plaintiff contends that the declaratory judgment cannot be given preclusive effect because it was not "actually litigated," this court will stay the instant matter to afford plaintiff the opportunity to move to vacate its Supreme Court default and, if granted, to "actually litigate" the coverage question in the declaratory judgment action.

What if a motion to vacate is made, but denied?  What then?  At what point does the stay end.  A better approach, in my opinion, would be to grant defendant a stay on the condition that it vacate the default, allow an answer to be interposed, and actually litigate the matter.  Problem solved.

 

What if it was a bench trial?

Kelly v Metropolitan Ins. & Annuity Co., 2011 NY Slip Op 00417 (App. Div., 1st 2011)

But rather than issuing a simple curative instruction, as would have been appropriate under the circumstances, the court interrogated each of the jurors individually concerning the nature of the gesture or sigh made by the expert. This protracted episode left the jurors with the distinct and unmistakable impression that the court disapproved of plaintiffs' expert and credited none of her testimony. Indeed, shortly following this interrogation, the court threatened to preclude plaintiffs' expert from testifying further, leaving plaintiffs without expert testimony on the crucial issue of defendants' negligence.

This prejudicial treatment of plaintiffs' expert is to be contrasted with the court's treatment of the defense expert, whom the court accorded wide latitude. Notably, the court did not similarly chide the defense's expert when he transgressed courtroom protocol. Defendant's expert, during direct, inappropriately interjected that the infant plaintiff "[p]robably should have left the [training wheels] on to begin with," a gratuitous statement intended to undermine the court's ruling that in light of the infant's age, neither he nor his parents could be considered comparatively negligent. This statement, in direct contravention of the court's ruling, arguably tainted the jury, and, unlike plaintiffs' expert's "sigh" or gesticulation, was an unambiguous statement, uttered directly to and intended to prejudice the jury. Indeed, plaintiffs' counsel pointed out that, in contradistinction to plaintiffs' expert, the defense expert had "intentionally responded . . . having nothing to do with the question to insert his opinion about the happening of the accident in the first place." The court agreed that the actions of the expert were "egregious," but nonetheless denied the plaintiffs' motion to strike his testimony, issuing instead a simple curative instruction.

The prejudice was compounded by the failure of the trial court to give the charge requested by plaintiffs, i.e., that the absence of a building code violation is not tantamount to the absence of negligence. This left the jury with the distinct impression that defendants' compliance with the building code was a defense to liability.

***

Because these errors served cumulatively to deprive plaintiffs of a fair trial, we hereby modify the judgment as indicated, and order a new trial.

The bold is mine.

Mandamus requires refusal.

Donoghue v New York City Dept. of Educ., 2011 NY Slip Op 00425 (App. Div. 1st 2011)

Article 78 is not limited to review of administrative determinations since a court also has subject matter jurisdiction to review a body's or officer's failure to act (see CPLR 7801; 7803[1]). On March 6, 2009, petitioner asked respondent New York City Department of Education (DOE) to retroactively grant her tenure in earth science, but DOE failed to act on her request.

Nor is this proceeding, which was commenced on April 6, 2009, barred by the statute of limitations. "In a proceeding for mandamus relief, it is necessary to make a demand and await a refusal, and the limitations period does not commence until the refusal" (Adams v City of New York, 271 AD2d 341, 341-342 [2000]). If there is no refusal, the limitations period does not begin to run (see id. at 342). Even if, arguendo, the clock began to run on March 6, 2009, petitioner brought the instant proceeding well within the four-month deadline set forth in CPLR 217(1).

It is true that petitioner's March 6, 2009 request was made more than four months after October 28, 2008. However, we exercise our discretion (see Matter of Densmore v Altmar-Parish-Williamstown Cent. School Dist., 265 AD2d 838, 839 [1999], lv denied 94 NY2d 758 [2000]) and determine that this proceeding is not barred by laches. If a petition and answer "can be construed as the necessary demand and refusal" (Matter of Triana v Board of Educ. of City School Dist. of City of N.Y., 47 AD3d 554, 557-558 [2008]), petitioner's pre-petition demand should not be deemed untimely.

We remand to permit respondents to answer (see CPLR 7804[f]; Matter of Nassau [*2]BOCES Cent. Council of Teachers v Board of Coop. Educ. Servs. of Nassau County, 63 NY2d 100, 103 [1984]).

 

The bold is mine.

Notice by any other means

CPLR R. 3211(a)(8)

Williams v DRBX Holdings, LLC, 2011 NY Slip Op 00423 (App. Div., 1st 2011)

In attempting to serve process on defendant, a foreign limited liability company authorized to do business in New York, plaintiff served defendant's attorneys instead of serving the Secretary of State, as required by Limited Liability Company Law § 303. Despite being twice alerted to the error by defense counsel, plaintiff never served the Secretary of State. "Notice received by means other than those authorized by statute does not bring a defendant within the jurisdiction of the court" (Macchia v Russo, 67 NY2d 592, 595 [1986]). The fact that defendant's attorneys would have received a copy of process from the Secretary of State does not avail plaintiff (see Fwu Chyuang Chow v Kenteh Enters. Corp., 169 AD2d 572 [1991]).

The bold is mine.