Author: DMG

Confession of Judgment CPLR § 3218(a)(2)

CPLR § 3218 Judgment by
confession
(a) Affidavit of defendant
(2) if the judgment to be confessed is for money due or to become due, stating concisely the facts out of which the debt arose and showing that the sum confessed is justly due or to become due

Cole-Hatchard v Nicholson, 2010 NY Slip Op 04131 (App. Div., 2nd, 2010)

Contrary to the plaintiffs' contention, the Receiver had standing to
seek vacatur of the judgment by confession on the ground that the
affidavit of confession of judgment does not [*2]comply
with CPLR 3218(a)(2) (see County Nat'l Bank v Vogt, 28 AD2d 793,
794, affd 21 NY2d 800; In re Horowitz, 98 NYS2d 881, 882,
affd 277 App Div 1130; 7-3218 New York Civil Practice: CPLR P
3218.00; see generally Eberhard v Marcu, 530 F3d 122, 133; Scholes
v Lehmann, 56 F3d 750, 755, cert denied sub nom. African
Enterprise, Inc. v Scholes, 516 US 1028; SEC v Shiv, 379 F
Supp 2d 609; cf. Burtner v Burtner, 144 AD2d 417, 418; Magalhaes
v Magalhaes, 254 App Div 880, 881), and the Receiver was not
required to commence a plenary action to the extent he sought to vacate
the judgment by confession on that ground (see County Natl. Bank v
Vogt, 28 AD2d 793, affd 21 NY2d 800; Mall Commercial Corp.
v Chrisa Rest., 85 Misc 2d 613, 614; cf. Engster v Passonno, 202
AD2d 769, 769; Affenita v Long Indus., 133 AD2d 727, 728; Bufkor,
Inc. v Wasson & Fried, 33 AD2d 636, 637).

Also contrary to the plaintiffs' contention, the affidavit of
confession of judgment, which failed, inter alia, to set forth any facts
explaining why Nicholson was indebted to the plaintiffs with respect to
the money they invested with him, or why such debt was justly due, does
not comply with CPLR 3218(a)(2) (see Franco v Zeltser, 111 AD2d
367, 368; County Nat'l Bank v Vogt, 28 AD2d at 793; Wood v
Mitchell, 117 NY 439, 441; cf. Harrison v Gibbons, 71 NY 58,
60; Perkins Davis Group, Inc. v Chelsea 82973, LLC, 24
AD3d 645, 645; Eurofactors Intl., Inc. v Jacobowitz, 21 AD3d 443,
445; ILMS Realty Assn. v Madden, 174 AD2d 603, 603; Princeton
Bank & Trust Co. v Berley, 57 AD2d 348, 352-354). In that
regard, given that the affidavit of confession of judgment does not
simply contain some minor error of fact, but rather, is wholly
insufficient under CPLR 3218(a)(2), the Supreme Court providently
exercised its discretion in declining to amend the judgment by
confession as an alternative to granting the Receiver's motion to vacate
it (see Baehre v Rochester Dental Prosthetics, 112 Misc 2d 270,
276; cf. Princeton Bank & Trust Co. v Berley, 57 AD2d at
354).

The bold is mine.

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When I bought it I thought "wow, I can't believe I snagged this domain," and did the blog as an afterthought.  After too many months of not posting–because I don't have the time to update three blogs–I'm canceling the hosting.  http://www.newyorkevidence.com is officially dead.

If anyone is interesting in buying the domain, let me know.  Otherwise I will probably just have it point to this blog.

No CPLR § 3101(d) notice required for plaintiff’s treating physician

CPLR § 3101(d) Trial Preparation (2) Materials

Soriano v Inoa, 2010 NY Slip Op 03843 (App. Div., 1st, 2010)

It is unclear from the trial record whether Dr. Gutstein was an expert
witness as to whom CPLR 3101(d) notice was required, or plaintiff's
treating physician, as to whom no notice was required (see e.g. Breen
v Laric Entertainment Corp., 1 AD3d 298, 299-300 [2003]). Moreover,
it is clear that the prejudice to defendants arose from the lack of
proper authorizations for medical records and not from the report
annexed to plaintiff's expert notice. 

Accordingly, Gutstein's testimony as to causation should not have
been precluded on the ground of plaintiff's late service of the notice.

For more information, a lot more information, on this case, head over to Hochfelder's New York Injury Cases Blog.

Best Evidence Rule

Clarke v Rodriguez, 2010 NY Slip Op 03861 (App. Div., 2nd, 2010)

The plaintiff submitted secondary evidence of the contents of the
original contract of sale in this case, which sufficiently explained
"the unavailability of the primary evidence" (Schozer v William Penn
Life Ins. Co. of N.Y., 84 NY2d 639, 644; see Lipschitz v Stein, 10 AD3d 634, 637). The
plaintiff established, by a preponderance of the evidence, that the
defendant's former attorney, who did not testify at the trial, was in
possession of the original contract of sale (see Glatter v Borten, 233
AD2d 166, 168; Dependable Lists v Malek, 98 AD2d 679, 680;
Prince, Richardson on Evidence §§ 10-209, 10-210 [Farrell 11th ed]).

Attorney Witness Rule

Falk v Gallo, 2010 NY Slip Op 03864 (App. Div., 2nd, 2010)

The disqualification of an attorney is a matter that rests within the
sound discretion of the Supreme Court (see Nationscredit Fin. Servs. Corp. v Turcios, 41
AD3d 802). A party's entitlement to be represented by counsel of
his or her choice is a valued right which should not be abridged absent a
clear showing that disqualification is warranted (see Aryeh v Aryeh, 14 AD3d 634). Thus, the
party seeking to disqualify an attorney bears the burden on the motion (see
S & S Hotel Ventures Ltd. Partnership v 777 S.H. Corp., 69 NY2d
437; Nationscredit Fin. Servs. Corp. v Turcios, 41
AD3d 802).

The advocate-witness rules contained in the Code of Professional
Responsibility, which have been superseded by the Rules of Professional
Conduct, provide guidance, but are not binding authority, for the courts
in determining whether a party's attorney should be disqualified during
litigation (see S & S Hotel Ventures Ltd. Partnership v 777 S.H.
Corp., 69 NY2d 437). Rule 3.7 of the Rules of Professional Conduct
provides that unless certain exceptions apply, "[a] lawyer shall not act
as an advocate before a tribunal in a matter in which the lawyer is
likely to be a witness on a significant issue of fact" (Rules of
Professional Conduct [22 NYCRR 1200.0] rule 3.7). Here, since the
plaintiffs' attorney was the only person, other than the parties, who
had knowledge of any discussions regarding the terms of the oral
agreement underlying this litigation, he is "likely to be [*2]a witness on a significant issue of fact"
(Rules of Professional Conduct [22 NYCRR 1200.0] rule 3.7; see Matter
of Stober v Gaba & Stoba, P.C., 259 AD2d 554). Accordingly, the
Supreme Court properly granted the defendants' motion to disqualify the
plaintiffs' attorney (see Matter of Stober v Gaba & Stober, 259
AD2d 554; Rules of Professional Conduct [22 NYCRR 1200.0] rule 3.7).

Sum Certain. CPLR § 3215(a)(b)

CPLR § 3215 Default Judgment
(a) Default and Entry
(b) Procedure before court

Fidelity Natl. Tit. Ins. Co. v Valtech Research, Inc., 2010 NY Slip Op 03865 (App. Div., 2nd, 2010)

The Supreme Court erred in excusing the defendant's default in
appearing and answering, and in allowing it to serve an answer. The
defendant failed to sustain its burden of demonstrating that it had not
received the summons and complaint in time to defend itself so as to
entitle it to vacatur of its default under CPLR 317 (see Guayara v
First Rockaway Coast Corp., 35 AD3d 659; cf. Taieb v Hilton
Hotels Corp., 60 NY2d 725; Brockington v Brookfield Dev. Corp., 308
AD2d 498). The defendant also failed to establish a reasonable excuse
for that default. Thus, it was not entitled to vacatur under CPLR 5015 (see
Eugene Di Lorenzo, Inc. v A.C. Dutton Lbr. Co., 67 NY2d 138, 141; Taylor
v Saal, 4 AD3d 467; Dominguez v Carioscia, 1 AD3d 396; Kaplinsky
v Mazor, 307 AD2d 916).

However, because the plaintiff is not seeking to recover a "sum
certain" within the meaning of CPLR 3215(a), its claim that the Clerk
had the authority to enter the judgment in its favor is without merit (see
Congregation Chaim Barucha v Friedman, 62 AD3d 933; Ayres Mem.
Animal Shelter, Inc. v Montgomery County Socy. for Prevention of Cruelty
of Animals, 17 AD3d 904, 905; Geer, Du Bois & Co. v Scott
& Sons Co., 25 AD2d 423, 423-424; see also Reynolds Sec. [*2]v Underwriters Bank & Trust Co., 44
NY2d 568, 572). Accordingly, the matter must be remitted to the Supreme
Court, Nassau County for an inquest and the entry thereafter of an
appropriate judgment (see CPLR 3215[b]).

CPLR 3101(a)(4) Non-Party disclosure

CPLR § 3101 Scope of disclosure

(a)
Generally.
There shall be full disclosure of all matter material and necessary in
the prosecution or defense of an action, regardless of the burden of
proof, by:

(4) any other person, upon notice
stating the circumstances or reasons such disclosure is sought or
required.

Kondratick v Orthodox Church in Am., 2010 NY Slip Op 03877 (App. Div., 2nd, 2010)

Although the general rule is that there shall be "full disclosure of all
matter material and necessary in the prosecution . . . of an action"
(CPLR 3101[a]; see Auerbach v Klein, 30 AD3d 451), nevertheless,
"unlimited disclosure is not permitted" (Silcox v City of New York, 233
AD2d 494). A party seeking disclosure from a nonparty witness, in
addition to demonstrating that the disclosure sought is material and
necessary, must also set forth circumstances or reasons why disclosure
is sought or required from a nonparty (see CPLR 3101[a][4]; Tenore
v Tenore, 45 AD3d 571, 571-572). Here, the Orthodox Church in
America (hereinafter the appellant) satisfied this requirement. In light
of the claims made by the plaintiff in Action No. 1, the information
sought in the subpoenas by the appellant is relevant, material, and [*2]necessary, and unavailable through other
means. Accordingly, the Supreme Court should have denied the motion to
quash the subpoenas (see Tenore v Tenore, 45 AD3d at 571-572; Thorson
v New York City Tr. Auth., 305 AD2d 666; Maxwell v Snapper,
Inc., 249 AD2d 374).

Mere Irregularities. CPLR § 2001. CPLR R. 2101(f)

CPLR § 2001 Mistakes, omissions, defects & irregularities

CPLR
R. 2101 Form of papers
(f) Defects in form; waiver

Martin v Castaneda, 2010 NY Slip Op 03881 (App. Div, 2nd, 2010)

After a hearing, in an unsigned report dated February 13, 2009, a
referee made certain findings of facts and conclusions of law. By notice
of motion dated March 20, 2009, the plaintiffs moved, inter alia, to
confirm that portion of the referee's report which recommended that the
property be sold to effect partition. In support of their motion, the
plaintiffs submitted, among other things, a copy of the referee's report
and a transcript of the hearing, both of which contained the referee's
recommendations. In opposition, the defendant contended that the subject
branch of the motion should be denied because the report was unsigned
and unfiled. By order entered July 2, 2009, the Supreme Court granted
the subject branch of the plaintiffs' motion. The defendant contends
that the report was defective as it was unfiled (see CPLR
4320[b]; 22 NYCRR 202.44), and unsigned. We affirm the order insofar as
appealed from.

Although the referee did not sign his report, it was filed on
July 2, 2009, and, under the circumstances, any alleged defects were
mere irregularities and not fatal, as no substantial right of the
defendant has been or will be prejudiced (see CPLR 2001, 2101[f];
cf. Allison v Allison, 28 AD3d 406, 407, cert denied 549
US 1307; Matter of Lipsky v Koplen, 282 AD2d 462, 463; John
Hancock Mut. Life Ins. Co. v 491-499 Seventh Ave. Assoc., 169 Misc
2d 493, 498-499).

In case anyone is curious, all of the cases the court cites to at the bottom involve referees.  I thought that maybe some of them would involve "mere irregularities" in other contexts, but alas, I was wrong.

CPLR R. 2215 and R. 5015

CPLR R. 2215 Relief Demanded by other than moving party


At least three days prior to the time at which the motion is noticed to be heard, or seven days prior to such time if demand is properly made pursuant to subdivision (b) of rule 2214, a party may serve upon the moving party a notice of cross-motion demanding relief, with or without supporting papers; provided, however, that:

(a) if such notice and any supporting papers are served by mailing, as provided in paragraph two of subdivision (b) of rule 2103, they shall be served three days earlier than as prescribed in this rule;

and
(b) if served by overnight delivery, as provided in paragraph six of subdivision (b) of rule 2103, they shall be served one day earlier than as prescribed in this rule. Relief in the alternative or of several different types may be demanded; relief need not be responsive to that demanded by the moving party.

May v Hartsdale Manor Owners Corp., 2010 NY Slip Op 03882 (App. Div., 2nd, 2010)

To successfully oppose a motion for leave to enter a default judgment
based on the failure to timely serve an answer, a defendant must
demonstrate a reasonable excuse for its delay and the existence of a
meritorious defense (see Kouzios v Deny, 57 AD3d 949; Giovanelli
v Rivera, 23 AD3d 616; Mjahdi v Maguire, 21 AD3d 1067, 1068;
Thompson v Steuben Realty Corp., 18 AD3d 864, 865; Dinstber v
Fludd, 2 AD3d 670, 671). Here, the defendant CDT Real Estate
Management Corp. (hereinafter CDT) attempted to place the blame for its
default in answering upon its insurance company. However, CDT already
was in default by the time it finally forwarded the summons and
complaint to its insurance broker, and CDT failed to offer any
explanation for this delay. Accordingly, it was an improvident exercise
of discretion to excuse the default of CDT, and to extend its time to
serve an answer in the absence of a cross motion for such relief (see
CPLR 2215; Zino v Joab Taxi, Inc., 20 AD3d 521, 522; Hosten
v Oladapo, 44 AD3d 1006).

CPLR R. 3212(a) Timing: What happens where the case is stricken from the trial calendar

Rivera v City of New York, 2010 NY Slip Op 03773 (App. Div., 1st, 2010)

Defendant's cross motion for summary judgment, which was made in
response to a motion by plaintiff characterized by the motion court as
one to restore the action to the calendar, should have been denied as
untimely, as defendant failed to show good cause for making the cross
motion more than 120 days after the filing of the note of issue (CPLR
3212[a]; Brill v City of New York, 2 NY3d 648, 652
[2004]). At least where, as here, the 120-day time limit had expired
before the case was struck from the calendar, we reject defendant's
argument that the 120-day limit does not apply to cases that have been
struck from the calendar. We note Brill's express prohibition
against consideration of unexcused, untimely motions no matter how
meritorious or nonprejudicial (id. at 653, especially n 4; see Perini Corp. v City of New York, 16 AD3d 37,
39-40 [2005]).

The bold is mine.