Author: DMG

CPLR § 4506 (1st appearance on the blog)

CPLR § 4506 Eavesdropping evidence; admissibility; motion to suppress in certain cases.

Festa v Festa, 2010 NY Slip Op 06777 (App. Div., 2nd 2010)      

In an action for a divorce and ancillary relief, the plaintiff appeals from an order of the Supreme Court, Rockland County (Berliner, J.), dated April 21, 2009, which, inter alia, granted those branches of the defendant's motion pursuant to CPLR 4506 which were to preclude him from presenting certain evidence at trial and granted those branches of the motion of nonparty Kenneth Svensson which were, among other things, to preclude him from, inter alia, disseminating or publishing certain evidence.

ORDERED that the appeal is dismissed as academic, without costs or disbursements.

As this action has been settled, any determination by this Court will not directly affect the rights of the parties (see Barrett Foods Corp. v New York City Bd. of Educ., 144 AD2d 410, 411). Since the matter does not warrant invoking the exception to the mootness doctrine (see Matter of Hearst Corp. v Clyne, 50 NY2d 707, 714), we dismiss the appeal as academic. 

 

 

Sepulcher

I could have sworn I had another Sepulcher case floating around here.

Dixon v City of New York, 2010 NY Slip Op 06775 (App. Div., 2nd 2010)

The plaintiffs seek to recover damages for, among other things, violation of the right of sepulcher and negligent infliction of emotional distress based on, inter alia, certain actions taken by personnel of the defendant Office of Chief Medical Examiner of the City of New York in connection with the autopsy of their deceased son. The plaintiffs contend, among other things, that their son's body was returned to them after the autopsy without the brain and certain other organs and/or body parts, a circumstance which the plaintiffs did not discover until their receipt of the autopsy report months after the autopsy and burial of the decedent. 

Contrary to the defendants' contention, the claim with respect to so much of the complaint as alleged a violation of the right of sepulcher and related claim for negligent infliction of emotional distress in this case did not arise, and the 90-day period within which to serve a notice of claim in this action pursuant to General Municipal Law § 50-e(1)(a) did not commence running, on the date of the autopsy. Rather, they accrued at the time the plaintiffs became aware of the defendants' actions and suffered mental anguish as a result (see Melfi v Mount Sinai Hosp., 64 AD3d 26, 32-40; Schultes v Kane, 50 AD3d 1277, 1278; Long v Sowande, 27 AD3d 247, 249; Yong Wen Mo v Gee Ming Chan, 17 AD3d 356, 358-359; Dana v Oak Park Marina, 230 AD2d 204, 209-210). Accordingly, under the circumstances of this case, the plaintiffs' notice of claim with respect to those portions of the complaint was timely served. We note that our decision in Cally v New York Hosp. [*2]Med. Ctr. of Queens (14 AD3d 640) is not to the contrary, since the claim in that case was untimely under any of the accrual dates proffered by the parties, and we rejected therein the contention that the conduct at issue in that case constituted a continuing wrong.

The bold is mine.

 

Forum Non Con (CPLR R. 327)

CPLR R. 327 Inconvenient forum

Matter of OxyContin II, 2010 NY Slip Op 06636 (App. Div., 2nd 2010)

ORDERED that the order is reversed, on the law, on the facts, and in the exercise of discretion, with costs, and the defendants' motion pursuant to CPLR 327(a) to dismiss the complaints of the plaintiffs who reside outside of New York State is granted on condition that the defendants stipulate (1) that they will accept service of process in newly commenced out-of-state actions upon the same causes of action as those asserted in the instant complaints by the out-of-state plaintiffs; (2) that they will waive any defenses which were not available to them in New York at the time of service upon them of a copy of this decision and order; (3) that each deposition of any of their home-office employees taken by a plaintiff's counsel may be cross-noticed and deemed to be taken in all of the cases of that counsel; and (4) that, in the new forum, they will not raise any objection to having their home-office employees appear for deposition or trial on the ground of venue or location of the lawsuit; the out-of-state plaintiffs' time to commence the new actions shall [*2]be within 90 days after service of the stipulation upon the plaintiffs; and it is further,

ORDERED that the defendants' time to stipulate shall be within 30 days after service upon them of a copy of this decision and order; in the event that the defendants fail to so stipulate, then the order is affirmed, with costs.

****

The Court of Appeals has said that, "[o]rdinarily, nonresidents are permitted to enter New York courts to litigate their disputes as a matter of comity. Obviously, however, our courts are not required to add to their financial and administrative burdens by entertaining litigation which does not have any connection with this State. The common-law doctrine of forum non conveniens, also articulated in CPLR 327, permits a court to . . . dismiss such actions where it is determined that the action, although jurisdictionally sound, would be better adjudicated elsewhere" (Islamic Republic of Iran v Pahlavi, 62 NY2d 474, 478-479 [footnote omitted]). The Supreme Court held that the actions brought by the nonresident plaintiffs should be adjudicated in New York State. We disagree and reverse, because we conclude that, although jurisdictionally sound, the actions brought by the nonresidents would be better adjudicated elsewhere.

On a motion to dismiss on the ground of forum non conveniens, the burden is on the defendant challenging the forum to demonstrate that considerations relevant to private or public interest militate against accepting or retaining the litigation (see Prestige Brands, Inc. v Hogan & Hartson, LLP, 65 AD3d 1028, 1029; Stravalle v Land Cargo, Inc., 39 AD3d 735, 736). "Among the factors the court must weigh are the residency of the parties, the potential hardship to proposed witnesses including, especially, nonparty witnesses, the availability of an alternative forum, the situs of the underlying actionable events, the location of evidence, and the burden that retention of the case will impose upon the New York courts" (Turay v Beam Bros. Trucking, Inc., 61 AD3d 964, 966; see Jackam v Nature's Bounty, Inc., 70 AD3d 1000, 1001; Tiger Sourcing [HK] Ltd. v GMAC Commercial Fin. Corporation-Can., 66 AD3d 1002, 1003). Also of importance, inter alia, is the extent to which the defendant will face particular difficulties in litigating the claim in this State (see Banco Ambrosiano v Artoc Bank & Trust, 62 NY2d 65, 73;Varkonyi v S.A. Empresa De Viacao Airea Rio Grandense [Varig], 22 NY2d 333, 338; Waterways Ltd. v Barclays Bank PLC, 174 AD2d 324, 327). In this case, these considerations weigh heavily against retaining the actions of the nonresident plaintiffs.

There is no significant dispute that the Oxycontin involved was not manufactured in New York, and the defendant's corporate offices are not located in this State. None of the nonresident plaintiffs purchased Oxycontin in New York, none ingested the drug here and, importantly, none received treatment for alleged resulting injuries in this State. Consequently, witnesses with critical information on both proximate cause and damages do not reside in New York. That fact presents substantial difficulties for the defendants inasmuch as New York courts lack the authority to subpoena out-of-state nonparty witnesses (see Judiciary Law § 2-b[1]; Wiseman v American Motors Sales Corp., 103 AD2d 230, 234 ["service of a subpoena on a nonparty witness outside this State is void because no authorization for such service exists"]). Moreover, "[u]nder[*3]established conflict of laws principles, the applicable law should be that of the jurisdiction which, because of its relationship or contact with the occurrence or the parties, has the greatest concern with the specific issue raised in the litigation'" (Matter of Doe, 14 NY3d 100, 109, quotingBabcock v Jackson, 12 NY2d 473, 481; see King v Car Rentals, Inc., 29 AD3d 205, 208). Thus, inasmuch as the hundreds of nonresident plaintiffs come from almost all of the 50 states and Puerto Rico, should New York courts retain those cases, they might well be called upon to apply different principles of law to identical claims. Moreover, under the circumstances presented here, we can find no strong counterbalancing consideration for retaining the cases of the out-of-state plaintiffs in our courts. Consequently, we find that the Supreme Court improvidently exercised its discretion in denying the defendant's motion to dismiss. Nevertheless, in order to ensure the availability of a forum for the claims of the nonresident plaintiffs, our reversal is conditioned on the defendants' entering into a stipulation as indicated herein (see Jackam v Nature's Bounty, Inc., 70 AD3d at 1002; Turay v Beam Bros. Trucking, Inc., 61 AD3d at 967; Brinson v Chrysler Fin., 43 AD3d 846, 848). 

The bold is mine.

Still almost impossible to vacate a stip.

CPLR R. 5015

Singh v North Shore Univ. Hosp., 2010 NY Slip Op 06626 (App. Div., 2nd 2010)

Apparently, when the exhibits available for the jury's review were collected, it was discovered that the plaintiff's attorney's "typewritten summation notes," which were not in evidence, had been mixed in with the plaintiff's decedent's medical records, which were in evidence. Soon thereafter, the defendants moved to vacate the stipulation of settlement, and for a new trial. The Supreme Court, which determined that the plaintiff's attorney "intentionally included" the notes "with" the medical records, granted the motion, vacated the stipulation of settlement, and ordered a new trial. Furthermore, the Supreme Court, sua sponte, directed the plaintiff's attorney to pay the defendants' "actual trial expenses" and a sanction in the sum of $10,000, and referred the matter to the Grievance Committee for the Eleventh Judicial District.

Stipulations of settlement, favored by the courts and not lightly set aside (see Hallock v State of New York, 64 NY2d 224, 230), are contracts subject to principles of contract interpretation (see McCoy v Feinman, 99 NY2d 295, 302). Only where there is cause sufficient to invalidate a contract, such as mistake or fraud, will a party be relieved from the consequences of a stipulation of settlement (see McCoy v Feinman, 99 NY2d at 302; Hallock v State of New York, 64 NY2d at 230).

Here, the defendants failed to establish a basis for the vacatur of the stipulation of settlement. The record does not establish that the defendants entered into the stipulation because they were aware that the plaintiff's attorney's typewritten summation notes had been made available to the jury. Accordingly, the Supreme Court improperly granted the defendants' motion to vacate the stipulation of settlement (cf. Masella v Leemilt's Flatbush Ave., 112 AD2d 1027, 1028) and for a new trial, and improperly, sua sponte, directed the plaintiff's attorney to pay the defendants' trial costs.

Interesting facts.

The bold is mine.

 

Same effect, but different cause. CPLR R. 3216

CPLR R. 3216 Want of prosecution

CPLR § 2004 Extensions of time generally

Sicoli v Sasson, 2010 NY Slip Op 06625 (App. Div., 2nd 2010)

The recertification order of the Supreme Court dated July 16, 2008, directing the plaintiffs to file a note of issue within 90 days and warning that the action would be deemed dismissed without further order of the court if the plaintiffs failed to comply with that directive, had the same effect as a valid 90-day notice pursuant to CPLR 3216 (see Rodriguez v Five Towns Nissan, 69 AD3d 833; Petersen v Lysaght, Lysaght & Kramer, P.C., 47 AD3d 783; Sustad v Karagiannis, 305 AD2d 664). Having received a 90-day notice, the plaintiffs were required either to file a timely note of issue or to move, before the default date, for an extension of time pursuant to CPLR 2004 (see Bokhari v Home Depot U.S.A., 4 AD3d 381, 382; Apicella v Estate of Apicella, 305 AD2d 621; Aguilar v Knutson, 296 AD2d 562). The plaintiffs did neither.

To avoid the dismissal of the action, the plaintiffs were required to demonstrate a reasonable excuse for their failure to comply with the recertification order and the existence of a potentially meritorious cause of action (see Rodriguez v Five Towns Nissan, 69 AD3d 833; Bokhari[*2]v Home Depot U.S.A., 4 AD3d 381, 382; Sustad v Karagiannis, 305 AD2d 664). Even assuming that the plaintiffs provided a reasonable excuse for their default (see CPLR 2005; Giannoccoli v One Cent. Park W. Assoc., 15 AD3d 348, 349; Betty v City of New York, 12 AD3d 472, 473-474; Association for Children with Learning Disabilities, Nassau Ch. v Zafar, 115 AD2d 580, 581), they failed to demonstrate a potentially meritorious cause of action. The affirmation of the plaintiffs' medical expert was insufficient to demonstrate that the causes of action alleging medical malpractice and lack of informed consent were potentially meritorious, since, inter alia, the medical expert failed to establish that his opinions were grounded in facts appearing in the hospital or medical records (see Bollino v Hitzig, 34 AD3d 711; Perez v Astoria Gen. Hosp., 260 AD2d 457, 458; Nepomniaschi v Goldstein, 182 AD2d 743, 744). Accordingly, the Supreme Court properly granted the motions, in effect, pursuant to CPLR 3216 to dismiss the action and properly denied the plaintiffs' cross motion to extend the time to serve and file a note of issue. 

The bold is mine.  Note that the Appellate Division says that it has the same effect as a "valid" 90-day notice.  Look at the requirements for a valid 90-day notice.  The recertification order is missing something.  Lisa Solomon and Marshall R. Isaacs wrote about this not too long ago.

 

Rely on plaintiff’s records at your own peril, but only if your insurance company doctor is less than honest.

JT noted an earlier case with similar facts. I think I posted it too, but I don't feel like looking around for it.

Ortiz v Orlov, 2010 NY Slip Op 06623 (App. Div., 2nd 2010)

The defendants, all of whom relied on the same submissions in support of their respective motions, failed to meet their prima facie burdens 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 NY 345; Gaddy v Eyler, 79 NY2d 955, 956-957). In support of their motions, they relied upon, inter alia, the medical reports of the plaintiff's treating physicians. At least two of those reports revealed that the plaintiff had significant limitations in her cervical and lumbar spine range of motion more than seven months post-accident (see Guerrero v Bernstein, 57 AD3d 845; Mendola v Demetres, 212 AD2d 515).

Since the defendants did not meet their prima facie burdens, it is unnecessary to decide whether the papers submitted by the plaintiff in opposition were sufficient to raise a triable issue of fact (see Guerrero v Bernstein, 57 AD3d at 845; Coscia v 938 Trading Corp., 283 AD2d 538). 

The bold is mine.  No-fault types should pay attention.  Sure, this isn't really procedural.  It will be.  Eventually.  I won't explain.  Sorry.

 

 

No money to hire an attorney. To bad so sad. CPLR R. 5015

CPLR R. 5015 Relief from judgment or order

O'Donnell v Frangakis, 2010 NY Slip Op 06622 (App. Div., 2nd 2010)

A defendant seeking to vacate an order or judgment entered upon his or her default in appearing and answering the complaint must demonstrate a reasonable excuse for [his or her] delay in appearing and answering the complaint and a potentially meritorious defense to the action (see Eugene Di Lorenzo, Inc. v A.C. Dutton Lbr. Co., 67 NY2d 138, 141; see CPLR 5015[a][1]; Gray v B.R. Trucking Co., 59 NY2d 649, 650; Li Gang Ma v Hong Guang Hu, 54 AD3d 312; Verde Elec. Corp. v Federal Ins. Co., 50 AD3d 672; Cooney v Cambridge Mgt. & Realty Corp., 35 AD3d 522). The defendant's excuses that her insurer denied and disclaimed coverage and that she could not initially afford an attorney were insufficient to excuse her lengthy delay in appearing (see Matter of Nieto, 70 AD3d 831; Toland v Young, 60 AD3d 754;Robinson v 1068 Flatbush Realty, Inc., 10 AD3d 716, 717; Rottenberg v Lerner, 232 AD2d 395). In view of the lack of a reasonable excuse, it is unnecessary to consider whether the defendant sufficiently demonstrated the existence of a potentially meritorious defense (see Toland v Young, 60 AD3d 754; Levi v Levi, 46 AD3d 519, 520; Segovia v Delcon Constr. Corp., 43 AD3d 1143, 1144). Accordingly, the defendant's motion should have been denied. 

The bold is mine.

If the insurer denied and disclaimed coverage, how will plaintiff get paid.  The Appellate DIvision cites to cases where the party claiming lack of funds failed to provide sufficient proof, so it isn't always a too bad so sad situation.  But what proof would the court need?  Tax returns?

Substantial Compliance with Discovery demands is not Willful and Contumacious

In this case.  I'm sure there are exceptions.  But generally, substantial compliance contraindicates an argument that a party's conduct was willful and contumacious.

CPLR § 3126 Penalties for refusal to comply with order or to disclose

Lomax v Rochdale Vil., Inc., 

Pursuant to CPLR 3126, "[a] court may strike an answer as a sanction if a defendant refuses to obey an order for disclosure or wilfully fails to disclose information which the court finds ought to have been disclosed'" (Mazza v Seneca, 72 AD3d 754, 754, quoting CPLR 3126). While the nature and degree of the penalty to be imposed pursuant to CPLR 3126 lies within the sound discretion of the trial court (see CPLR 3126[3];Kihl v Pfeffer, 94 NY2d 118, 122-123; Bernal v Singh, 72 AD3d 716, 717), the drastic remedy of striking a pleading is not appropriate absent a clear showing that the failure to comply with discovery demands is willful or contumacious (see CPLR 3126[3]; Moray v City of Yonkers, 76 AD3d 618).

Here, there was no clear showing that the defendants' conduct was willful or contumacious (see Dank v Sears Holding Mgt. Corp., 69 AD3d 557). Rather, the defendants substantially complied with their discovery obligations and, where demanded documents could not be found, the defendants provided affidavits showing that good faith efforts had been made to locate the documents (see Argo v Queens Surface Corp., 58 AD3d 656, 656-657; Maffai v County of Suffolk, 36 AD3d 765, 766; Sagiv v Gamache, 26 AD3d 368, 369). Accordingly, it was an improvident exercise of discretion to strike the answer. 

Motions to strike, generally, are just an easy way to bill or aggravate the other party, serving no useful purpose.

Ambiguous Writings and Aggrieved (CPLR § 5511)

CPLR § 5511

Bana Elec. Corp. v Bethpage Union Free School Dist., 2010 NY Slip Op 06612 (App. Div., 2nd 2010)

ORDERED that the appeal by the defendant School Construction Consultants, Inc., is dismissed, without costs or disbursements, as abandoned (see 22 NYCRR 670.8[e]), and on the additional ground that the defendant School Construction Consultants, Inc., is not aggrieved by the order appealed from (see CPLR 5511); and it is further,

ORDERED that the order is affirmed insofar as appealed and cross-appealed from, without costs or disbursements.

"Whether or not a writing is ambiguous is a question of law to be resolved by the courts" (W.W.W. Assoc. v Giancontieri, 77 NY2d 157, 162). A contract is ambiguous when " the provisions in controversy are reasonably or fairly susceptible of different interpretations or may have two or more different meanings'" (Geothermal Energy Corp. v Caithness Corp., 34 AD3d 420, 423, quoting Feldman v National Westminster Bank, 303 AD2d 271, 271 [internal quotation marks omitted]). In deciding whether the writing is ambiguous, the court " should examine the entire contract and consider the relation of the parties and the circumstances under which it was executed'" (Kass v Kass, 91 NY2d 554, 566, quoting Atwater & Co. v Panama R.R. Co., 246 NY 519, 524). [*2]If the court concludes that the language in the contract is ambiguous, "the parties may submit extrinsic evidence as an aid in construction, and the resolution of the ambiguity is for the trier of fact" (State of New York v Home Indem. Co., 66 NY2d 669, 671; see Nappy v Nappy, 40 AD3d 825, 826; Geothermal Energy Corp. v Caithness Corp., 34 AD3d at 424; Weiss v Weinreb & Weinreb, 17 AD3d 353).

Here, an ambiguity exists as to whether the subject contract required the plaintiff to perform the work in question. Thus, the Supreme Court correctly determined that there are triable issues of fact which precluded an award of summary judgment to either party (see Geothermal Energy Corp. v Caithness Corp., 34 AD3d at 424; Pellot v Pellot, 305 AD2d 478, 481; Nappy v Nappy, 40 AD3d at 826; Siegel v Golub, 286 AD2d 489, 490).

The bold is mine.

CPLR § 212(a) “Under the law that existed at the time…”

CPLR § 212 Actions to be commenced within ten years
(a) Possession necessary to recover real property

Asher v Borenstein, 2010 NY Slip Op 06611 (App. Div., 2nd 2010)

In July 2008, Real Property Actions and Proceedings Law §§ 501, 522, and 543 were amended. The amendments applied solely to those actions commenced after July 7, 2008. Since the plaintiff commenced this action prior to July 7, 2008, those amendments are not applicable to this action.

Under the law as it existed at the time that the plaintiff filed her lawsuit, where a claim of adverse possession was not based upon a written document, the plaintiff had to demonstrate that she "usually cultivated, improved, or substantially enclosed the land" (Walsh v Ellis, 64 AD3d 702, 703; see former RPAPL former 522). Moreover, the plaintiff had to establish that her possession of the disputed parcel was "(1) hostile and under claim of right; (2) actual; (3) open and notorious; (4) exclusive; and (5) continuous for the required period" (Walling v Przybylo, 7 NY3d 228, 232; see Walsh v Ellis, 64 AD3d 702). We agree with the Supreme Court that the plaintiff satisfied these requirements.

Here, the defendants admitted that the fence between the two properties encroached approximately three feet onto their property and stood in the same location from the time they purchased their property in 1996 until the plaintiff brought suit, and that they were aware that the fence was not on the true property line when they took possession of their property. Nevertheless, from 1996 through 2008, the defendants took no action to eject the plaintiff. Accordingly, the defendants have conceded, through their admissions and their actions, that the plaintiff continually possessed the property for the 10-year statutory period (see Walling v Przybylo, 7 NY3d at 232; CPLR 212[a]).

The law as it existed at the time that the plaintiff filed her lawsuit made it clear that even "actual knowledge that another person is the title owner does not, in and of itself, defeat a claim of right by an adverse possessor" (Walling v Przybylo, 7 NY3d at 230; see Merget v Westbury Props., LLC, 65 AD3d 1102, 1105). Instead, "[c]onduct will prevail over knowledge, particularly when the true owners have acquiesced in the exercise of ownership rights by the adverse possessors" (Walling v Przybylo, 7 NY3d at 232-233; see Hall v Sinclaire, 35 AD3d 660, 663). Accordingly, the question of whether the plaintiff was aware that her fence encroached upon the defendants' property is immaterial to her proof of the element of hostility in this matter.

For actions commenced prior to July 7, 2008, "[t]he type of cultivation or improvement sufficient to satisfy the statute will vary with the character, condition, location and potential uses for the property" (Birnbaum v Brody, 156 AD2d 408, 408; see former RPAPL 522[1]). Here, the plaintiff's cultivation and improvement of the disputed parcel, consisting of maintaining the grass, planting shrubs, and installing a walkway, was consistent with the use to which a " thrifty owner[]'" would put comparable property (Ray v Beacon Hudson Mtn. Corp., 88 NY2d 154, 160, quoting Ramapo Mfg. Co. v Mapes, 216 NY 362, 373; see former RPAPL 522[1]; Birnbaum v Brody, 156 AD2d at 408-409; see also 2 N. St. Corp. v Getty Saugerties Corp., 68 AD3d 1392, 1394-1395; but see Giannone v Trotwood Corp., 266 AD2d 430, 431). In addition, the presence of the fence for the statutory period constituted a substantial enclosure of the disputed parcel (see former RPAPL 522[2]; Morris v DeSantis, 178 AD2d 515, 516; Birnbaum v Brody, 156 AD2d at 409).

Since the record demonstrates by clear and convincing evidence, under the law existing at the time this action was commenced, that the plaintiff cultivated or improved the subject parcel, enclosed it with a fence, and satisfied the elements of adverse possession, and the defendants "acquiesce[d] . . . in the exercise of an obvious adverse or hostile ownership through the statutory period" (Walling v Przybylo, 7 NY3d at 232 [internal quotation marks omitted]), the Supreme Court properly determined that the plaintiff acquired title to the disputed parcel via adverse possession.

The bold is mine.