Author: DMG

The sad state of CPLR § 2309 and other things.

CPLR § 2309 is a disaster.  The courts are wildly inconsistent in how they treat it.  Some prefer the substance over form approach and others do the opposite.  Not too long ago, the Appellate Term, First Department allowed a party to add a certificate of conformity at the appellate level.  See, Eastern
Star Acupuncture, P.C. v Clarendon Natl. Ins. Co., 2010 NY Slip
Op 50043(U) (App. Term, 1st, 2010).  A few days ago, the Appellate Division, First Department wasn't as understanding. (h/t JT).  In Green v Fairway Operating Corp., 2010 NY Slip Op 03481 (App. Div., 1st, 2010) the defendant's motion for summary judgment was granted on default.  Plaintiff moved to vacate and attached an affidavit from a non-party witness which was sworn in the DR.  The plaintiff's motion was denied and the Appellate Division affirmed.  I think I said this once before, but it remains true, it's an exceptionally silly reason to lose a motion.  JT compares it to russian roulette, which is pretty apt.

The last time I wrote about 2309, I said that it was a dead objection, or something like that.  It appears that, in the first department at least, it is alive and well.  The objection, however, must be made in the papers, otherwise it's waived.  You'll find that most people don't know enough to object.

I'm sure you're thinking, "well, what's the rule in the First Department after Green?"  I have no idea.  I'd be interested to see what the Appellate Term does with Green.  Will it distinguish it or make 2309 a hard rule?

Other issues on my mind:

  • Why is there a split between the Second and First Department as to what is required to show a "reasonable excuse" when attempting to vacate a default?
  • Why do the courts allow a defendant to move to dismiss under CPLR R. 3211(a)(7) when the defendant is not claiming that the plaintiff failed to state a cause of action?  When affidavits and other proofs are attached, the courts change their inquiry from whether plaintiff has stated a cause of action to whether plaintiff has a cause of action (which is different from whether a plaintiff will ultimate be successful with that cause of action).  This, mind you, is different than a court converting it to a motion for summary judgment.  It just doesn't make any damn sense to me.

Late–but not too late–Jury Demand

Rosenbaum v Schlossman, 2010 NY Slip Op 03494 (App. Div., 1st, 2010)

Order, Supreme Court, New York County (Milton A. Tingling, J.),
entered March 30, 2009, which denied defendants' motion to vacate the
note of issue, unanimously affirmed, without costs. Order, same court,
Justice and entry date, which denied defendants' motion to stay a
scheduled nonjury trial of this matter and compel the Clerk to accept a
jury demand, unanimously modified, on the facts, to direct the Clerk to
accept the jury demand nunc pro tunc, and, in view of the interim stay
of trial previously ordered by this Court, the remainder of the appeal
from said order unanimously dismissed as academic, without costs.

Defendants should be permitted to serve and file a late jury
demand given that the lateness, by only five days, was due in part to
the late filing of the note of issue, and also given no intention by
defendants to waive a jury trial, a prompt motion by defendants to be
relieved of their default in timely filing a jury demand, and no
prejudice to plaintiff caused by the late jury demand (see A.S.L.
Enters. v Venus Labs., 264 AD2d 372, 373 [1999]). Defendants' motion
to vacate the note of issue was properly denied where defendants had
received copies of plaintiff's letter to the court requesting the
court's issuance of a written order memorializing a prior oral order
extending the time to file a note of issue, but did not object to the
requested relief or inform [*2]the court,
at that time, of their view that disclosure was incomplete (22 NYCRR
202.21[d]). We have considered and rejected defendants' remaining
contention.

The bold is mine.

Instead of simply writing that the remaining contention is "rejected" wouldn't it be nice if they said what the remaining contention was.

Court of Appeals on the “borrowing statute”–CPLR § 202

 CPLR § 202 Cause of action accruing without the state

Portfolio Recovery Assoc., LLC v King, 2010 NY Slip Op 03470 (Ct. App., 2010)

On April 1, 2005, nearly five years after the assignment and more
than six years after the account was canceled, Portfolio commenced this
action against King, now a resident of New York, asserting causes of
action for breach of contract and account stated. King asserts in his
answer, among other things, that upon application of CPLR 202—this
State's "borrowing statute"—Portfolio's claims are time-barred.
Specifically, King claims that Delaware's three-year statute of
limitations for breach of a credit contract (see 10 Del.C. §
8106) applies and, alternatively, Portfolio's claims are untimely under
this State's six-year breach of contract limitations period (see
CPLR 213[2]).

Portfolio obtained summary judgment on its complaint. Supreme
Court directed that judgment be entered in Portfolio's favor and the
Appellate Division affirmed (55 AD3d 1074). We now reverse.

The Appellate Division properly concluded that the Delaware choice of
law clause did not require the application of the Delaware three-year
statute of limitations to bar Portfolio's claims. Choice of law
provisions typically apply to only substantive issues (see Tanges v
Heidelberg N. Am., 93 NY2d 48, 53 [1999]), and statutes of
limitations are considered "procedural" because they are deemed "'as
pertaining to the remedy rather than the right'" (id. at 54-55
quoting Martin v Dierck Equip. Co., 43 NY2d 583, 588 [1978]).
There being no express intention in the agreement that Delaware's
statute of limitations was to apply to this dispute, the choice of law
provision cannot be read to encompass that limitations period. We
conclude, however, that the Appellate Division should have applied CPLR
202 to Portfolio's claims to determine whether they were timely brought (see
e.g. Global Fin. Corp. v Triarc Corp., 93 NY2d 525, 528 [1999]
["there is a significant difference between a choice-of-law question,
which is a matter of common law, and (a) Statute of Limitations issue,
which is governed by the particular terms of the CPLR"]).

CPLR 202 provides, in relevant part, that "[a]n action based upon
a cause of action accruing without the state cannot be commenced after
the expiration of the time limited by the laws of either the state or
the place without the state where the cause of action accrued."
Therefore, "[w]hen a nonresident sues on a cause of action accruing
outside New York, CPLR 202 requires the cause of action to be timely
under the limitation periods of both New York and [*3]the
jurisdiction where the cause of action accrued" (Triarc, 93 NY2d
at 528). If the claimed injury is an economic one, the cause of action
typically accrues "where the plaintiff resides and sustains the economic
impact of the loss" (id. at 529).

Portfolio, as the assignee of Discover, is not entitled to stand
in a better position than that of its assignor. We must therefore first
ascertain where the cause of action accrued in favor of Discover. Here,
it is evident that the contract causes of action accrued in Delaware,
the place where Discover sustained the economic injury in 1999 when King
allegedly breached the contract. Discover is incorporated in Delaware
and is not a New York resident. Therefore, the borrowing statute applies
and the Delaware three-year statute of limitations governs.

That does not end the inquiry, however, because in determining
whether Portfolio's action would be barred in Delaware, this Court must
"borrow" Delaware's tolling statute to determine whether under Delaware
law Portfolio would have had the benefit of additional time to bring the
action (see GML, Inc. v Cinque & Cinque, P.C., 9 NY3d
949, 951 [2007]). Delaware's tolling statute—Delaware Code §
8117—provides that:

"If at the time when a cause of action accrues against
any person, such person is out of the State, the action may be
commenced, within the time limited therefor in this chapter, after such
person comes into the State in such manner that by reasonable diligence,
such person may be served with process. If, after a cause of action
shall have accrued against any person, such person departs from and
resides or remains out of the State, the time of such person's absence
until such person shall have returned into the State in the manner
provided in this section, shall not be taken as any part of the time
limited for the commencement of the action."

Section 8117
was meant to apply only in a circumstance where the defendant had a
prior connection to Delaware, meaning that the tolling provision
envisioned that there would be some point where the defendant would
return to the state or where the plaintiff could effect service on the
defendant to obtain jurisdiction (see Williams v Congregation Yetev
Lev, 2004 WL 2924490 *7 [SDNY 2004]). Indeed, Delaware's highest
court has held that the literal application of its tolling provision
"would result in the abolition of the defense of statutes of limitation
in actions involving non-residents" (Hurwich v Adams, 155 A2d
591, 593-594 [Del. 1959]).

There is no indication that King ever resided in Delaware, nor is
there any indication from the case law that Delaware intended for its
tolling provision to apply to a nonresident like King. Therefore, we
conclude that Delaware's tolling provision does not extend [*4]the three-year statute of limitations.
Moreover, contrary to Portfolio's contention, it is of no moment that
Portfolio was unable to obtain personal jurisdiction over King in
Delaware; this Court has held that it is not inconsistent to apply CPLR
202 in such a situation (see Insurance Co. of N. Am. v ABB Power
Generation, 91 NY2d 180, 187-188 [1997]).

Applying Delaware's three-year statute of limitation, the instant
action should have been commenced not later than 2002. Because the
contract claims were not brought until 2005, they are time-barred in
Delaware, where the causes of action accrued, and therefore they are
likewise time-barred in New York upon application of the borrowing
statute. This holding is consistent with one of the key policies
underlying CPLR 202, namely, to prevent forum shopping by nonresidents
attempting to take advantage of a more favorable statute of limitations
in this State (see Antone v General Motors Corp., 64 NY2d 20,
27-28 [1984]).

As a final matter, we note that only Portfolio sought summary
judgment below. Absent a cross motion for summary judgment by King, we
are not empowered to now grant that relief (see Stern v Bluestone, 12 NY3d 873, 876
[2009]; Falk v Chittenden, 11 NY3d 73, 78-79 [2008]; Merritt
Hill Vineyards v Windy Hgts. Vineyard, 61 NY2d 106, 110-111
[1984]).

The bold is mine.

CPLR § 2105 Certification by attorney

CPLR § 2105 Certification by attorney

HSBC Bank USA, N.A. v Valentin, 2010 NY Slip Op 03413 (App. Div., 2010)

Contrary to the Supreme Court's decision, the limited power of attorney
submitted by the plaintiff was not invalid because it was not certified
in accordance with CPLR 2105. CPLR 2105 provides, in part, that "where a
certified copy of a paper is required by law, an attorney admitted to
practice in the courts of the state may certify that it has been
compared by him with the original and found to be a true and complete
copy" (CPLR 2105). The copy of the limited power of attorney was duly
certified by the office of the County Administrator, which made further
certification by an attorney unnecessary (see CPLR 2105).

The bold is mine.

Intervention requires a timely motion CPLR § 1012; CPLR § 1013

CPLR §
1012 Intervention as of right; notice to attorney-general, city, county,
town or village where constitutionality in issue

CPLR
§
1013 Intervention by permission

T & V Constr. Corp. v Pratti, 2010 NY Slip Op 03433 (App. Div., 2nd, 2010)

Intervention under CPLR 1012 and CPLR 1013 requires a timely motion (see
CPLR 1012, 1013; Oparaji v Weston, 293 AD2d 592, 593; Rectory
Realty Assoc. v Town of Southampton, 151 AD2d 737). Here, the
motion of the proposed intervenor, U.S. Bank National Association, as
Trustee for Asset Backed Pass Through Certificates, Series 200-HE1
(hereinafter U.S. Bank), was untimely (see Oparaji v Weston, 293
AD2d at 593; Vacco v Herrera, 247 AD2d 608). U.S. Bank moved,
inter alia, pursuant to CPLR 1012 to intervene as of right in this
foreclosure action or, in the alternative, pursuant to CPLR 1013 for
leave to intervene in the action for the purpose of asserting a defense
based on the doctrine of equitable subrogation. The motion was made
approximately two years after the plaintiff filed its notice of
pendency, and approximately eight months after a judgment of foreclosure
and sale was entered in this action. The subject premises had already
been sold pursuant to the judgment of foreclosure and sale prior to U.S.
Bank's motion. The plaintiff would be prejudiced if it were required to
relitigate this foreclosure action, which has already been prosecuted
and completed (see Chesney v Chesney, 260 AD2d 340, 341; Rectory
Realty Assoc. v Town of Southampton, 151 AD2d at 738). Under these
circumstances, U.S. Bank was not entitled to intervene in the action (see
Carnrike v Youngs, 70 AD3d 1146, 1147; Oparaji v Weston, 293
AD2d at 593; Vacco v Herrera, 247 AD2d 608; Rectory Realty
Assoc. v Town of Southampton, 151 AD2d at 737-738).

The bold is mine.

God save the clerks

Most of you don't know, but there is a recent addition to 22 NYCRR 202.5, namely, (d)(1).

(d)(1) In accordance with CPLR 2102(c), a County Clerk and a chief clerk of the Supreme Court or County Court, as appropriate, shall refuse to accept for filing papers filed in actions and proceedings only under the following circumstances or as otherwise provided by statute, Chief Administrator's rule or order of the court:

(i) The paper does not have an index number;

(ii) The summons, complaint, petition, or judgment sought to be filed with the County Clerk contains an “et al“ or otherwise does not contain a full caption;

(iii) The paper sought to be filed with the County Clerk is filed in the wrong court; or

(iv) The paper is not signed in accordance with section 130-1.1-a of the Rules of the Chief Administrator.
The County Clerk shall require the payment of any applicable statutory fees, or an order of the Court waiving payment of such fees, before accepting a paper for filing.

There are only four reasons that a clerk and reject papers. Four. Well, there are others, but they require the Chief Administrator or a court order. You'd think CPLR R. 2102(c) would be enough. Rule 2102(c), for those that don't know and are curious, tells us, "A clerk shall not refuse to accept for filing any paper presented for that purpose except where specifically directed to do so by statute or rules promulgated by the chief administrator of the courts, or order of the court."

Why do we have this new rule? Good question. Article 78. There was one over in the Bronx and an earlier one in New York. I'm not sure why we don't see more of these. Enough of them, and you'd probably see less filings rejected for bizarre reasons.  Or at the very least, less clerks playing judge.

I have an unhealthy obsession with books

It's something I just noticed. Not books,
as in novels, stories, etc.  I'm talking about journals, notebooks, and
such.   I have at least 20 moleskins of various size, some of those
marble notebooks that we all used in grammar school, a few generic
moleskins, and other assorted things to write on.  Out of all of them,
I've used maybe 6.  Out of that 6, I got past the first 10 pages on 2 of
them.  

Some I use to take notes.
 Others I use to put quotes.  Then there is the one that I use to put
motivational type stuff in.  And I think there are two with the
same unfinished short story–they are identical, but for the plot.
Notebook  

Even though I
don't use but a handful of them, I want more.  This can't be normal.  Levenger
makes a bunch of cool ones.  I even want to try the Circa line.  Others
are Rhodia…

I was going to write more about the
different books, but while I was looking around for links I found a Notebook blog.
 Seriously.

The way I figure it,
anyone who reads this blog is a nerd of sorts.  At the very least, nerdy
enough to read this and be curious enough to take a look at the
notebook blog.

Service round-up

CPLR § 306-b. Service of the summons and complaint, summons with
notice, third-party summons and complaint, or petition with a notice of
petition or order to show cause

CPLR § 312-a Personal service by mail
(a) Service
(b) Completion of service and time to answer

CPLR § 301 Jurisdiction over persons, property, or status

CPLR § 302 Personal Jurisdiction by acts of non-domiciliaries

CPLR
§ 308 Personal service upon a natural person
(4) Nail and Mail

CPLR R. 305 Summons; supplemental summons, amendment

I had less of these laying around than I thought.

JPMorgan Chase Bank, N.A. v Szajna, 2010 NY Slip Op 03286 (App. Div., 2nd, 2010)

The process server retained by the plaintiff made three attempts to
serve the defendant at his dwelling. Contrary to the defendant’s
contention, the three attempts to serve him at his dwelling at different
times and on different days, including an attempt on an early weekday
morning and an attempt during midday Saturday, were sufficient to
constitute “due diligence” within the meaning of CPLR 308(4) (see County of Nassau v Gallagher, 43 AD3d 972,
973-974; Johnson v Waters, 291 AD2d 481; Matos v Knibbs, 186
AD2d 725; Mitchell v Mendez, 107 AD2d 737, 738). Since there was
no indication that the defendant worked Saturdays or that his workplace
was readily ascertainable, the plaintiff was not required to attempt to
serve the defendant at his workplace (see Johnson v Waters, 291
AD2d 481; Matos v Knibbs, 186 AD2d 725; Mitchell v Mendez, 107
AD2d at 738; cf. Pizzolo v Monaco, 186 AD2d 727). Accordingly,
the process server properly resorted to service of process pursuant to
CPLR 308(4), and the defendant’s motion to vacate the default judgment
for lack of jurisdiction was properly denied.

Klein v Educational Loan Servicing, LLC, 2010 NY Slip Op 02519 (App. Div., 2nd, 2010)

Here, the defendants did not seek dismissal of the complaint insofar
as asserted against the corporate defendants on the ground of lack of
jurisdiction under either CPLR 301 or 302. Rather, the defendants
contended that the complaint should be dismissed insofar as asserted
against the corporate defendants based on improper service of process.
By failing to contend that there was no jurisdiction under either CPLR
301 or 302 over the corporate defendants in their cross motion, the
defendants waived their challenge to whether the corporate defendants
were subject to personal jurisdiction (see Weisener v Avis
Rent-A-Car, 182 AD2d 372, 373; Hatch v Tu Thi Tran, 170 AD2d
649, 650; Boswell v Jiminy Peak, 94 AD2d 782, 783).

Nevertheless, the plaintiff’s motion for leave to enter a default
judgment should have been denied and the complaint dismissed as against
all defendants since the plaintiff failed to present proof of valid
service of the summons and complaint as required by CPLR 312-a(a) and
(b). The plaintiff submitted evidence that he served the defendants by
certified mail, return receipt requested. However, he presented no
evidence that copies of the summons and complaint were sent to the
defendants, by first-class mail, together with, inter alia, two copies
of a statement of service by mail and acknowledgment of receipt, and
that the signed acknowledgment of receipts were mailed or delivered to
the plaintiff (see CPLR 312-a[a], [b]). In the absence of proper
service, no personal jurisdiction was acquired over the defendants (see
Bennett v Acosta, 68 AD3d 910; Horseman Antiques, Inc. v Huch, 50
AD3d 963, 964; Dominguez v Stimpson Mfg. Corp., 207 AD2d 375,
375).

Continue reading “Service round-up”

Venue and Consolidation

Grinman v Alamo Rent A Car, Inc., 2010 NY Slip Op 03067 (App. Div., 2nd, 2010)

The Supreme Court did not improvidently exercise its discretion in granting the motion of the defendants Highland Trans Fleet and Manuel Rebelo and that branch of the cross motion of the defendants Alamo Rent A Car, Inc., National Car Rental, Inc., and Inna Grinman which were to change the venue of the action from Kings County to Steuben County where the underlying motor vehicle accident occurred. The affirmations of the defendants' attorneys and supporting evidence sufficiently detailed (1) the names, addresses, and occupations of numerous prospective witnesses, at least one of whom was a State Trooper based in Bath, (2) the facts to which the witnesses will testify at trial, (3) a statement that the witnesses are willing to testify, and (4) a statement that the witnesses would be greatly inconvenienced if the venue of the action was not changed (see Walsh v Mystic Tank Lines Corp., 51 AD3d 908, 909; Lafferty v Eklecco, LLC, 34 AD3d 754, 755; Professional Veh. Leasing v Continuing Dev. Servs., 275 AD2d 313, 314).

KMK Safety Consulting, LLC v Jeffrey M. Brown Assoc., Inc., 2010 NY Slip Op 02927 (App. Div., 2nd, 2010)

In the present action, arising out of a contractual dispute and
commenced in the Supreme Court, Richmond County, the defendants produced
a copy of the subject contract in support of their motion. That
contract recited, inter alia, that the defendant Jeffrey M. Brown
Associates, Inc., was a Pennsylvania corporation, and it further
provided, in relevant part, that "[a]ny dispute between the parties
related to this Contract shall be determined by the Pennsylvania Court
of Common Pleas, Philadelphia County." Contrary to the plaintiff's
contention, the Supreme Court properly granted the defendants' motion to
dismiss the complaint on the basis of documentary evidence containing
this unambiguous forum selection clause.

"A contractual forum selection clause is prima facie valid and
enforceable unless it is shown by the challenging party to be
unreasonable, unjust, in contravention of public policy, invalid due to
fraud or overreaching, or it is shown that a trial in the selected forum
would be so gravely difficult that the challenging party would, for all
practical purposes, be deprived of its day in court" (LSPA Enter.,
Inc. v Jani-King of N.Y., Inc., 31 AD3d 394, 395; see Boss v American [*2]Express
Fin. Advisors Inc., 6 NY3d 242, 246; Brooke Group v JCH
Syndicate 488, 87 NY2d 530, 534; Trump v Deutsche Bank Trust Co. Ams., 65 AD3d
1329, 1331; W.J. Deutsch & Sons, Ltd. v Charbaut Am., Inc.,
57 AD3d 529; Koob v IDS Fin. Servs., 213 AD2d 26, 33). The
plaintiff's vague and conclusory assertions that the forum selection
clause is unconscionable and unreasonable are inadequate to defeat the
defendants' motion (see Tatko Stone Prods., Inc. v Davis-Giovinzazzo
Constr. Co., Inc., 65 AD3d 778, 779; Horton v Concerns of Police Survivors, Inc., 62
AD3d 836, 836-837; Casper v Pines Assocs., L.P., 53 AD3d 764,
765; Stravalle v Land Cargo, Inc., 39 AD3d 735,
736; LSPA En-ter., Inc. v Jani-King of N.Y., Inc., 31 AD3d 394,
395). Similarly, the plaintiff's contentions that its president did not
read the contract and was unaware of its terms prior to signing it are
patently unavailing (see Gillman v Chase Manhattan Bank, 73 NY2d
1, 11; British W. Indies Guar. Trust Co. v Banque Internationale A
Luxembourg, 172 AD2d 234).

Richmond Amboy Realty, LLC v 3881 Richmond Ave. Realty, Inc., 2010 NY Slip Op 03098 (App. Div., 2nd, 2010)

In the interests of judicial economy, the Supreme Court providently
exercised its discretion in granting those branches of the plaintiff's
motion which were to remove a summary nonpayment proceeding, pending in
the Civil Court, to the Supreme Court, and to consolidate that
proceeding with the instant action seeking, inter alia, a declaration
regarding the plaintiff tenant's right to be restored to possession of
the premises (see CPLR 602[b]; Pinecrest Natl. Funding, LLC., v
Aatlas-B Props., Inc., 68 AD3d 833; Kally v Mount Sinai Hosp.,
44 AD3d 1010).

Jackam v Nature's Bounty, Inc., 70 AD3d 1000 (App. Div., 2nd, 2010)

The plaintiffs commenced this action against the
defendants in November 2004. After some discovery was completed, the
defendants moved in
March 2006 to dismiss the complaint on the ground of forum non
conveniens. The Supreme
Court denied the motion without prejudice to renewal after discovery was
completed.
Accordingly, after discovery was completed, the defendants renewed their
motion to dismiss the
complaint in September 2008 on the ground of forum non conveniens. The
court again denied
the motion. We reverse. "The common-law doctrine of forum non
conveniens, also
articulated in CPLR 327 (a), permits a court to stay or dismiss [an
action] where it is determined
that the action, although jurisdictionally sound, would be better
adjudicated elsewhere. In a
motion to dismiss on the ground of forum non conveniens, the burden is
on a defendant
challenging the forum to demonstrate relevant private or public interest
factors which militate
against accepting the litigation here. The court's determination will
not be disturbed on appeal
unless the court has failed to properly consider all the relevant
factors" (Prestige Brands, Inc.
v Hogan & Hartson, LLP, 65 AD3d 1028, 1028-1029 [2009] [internal
quotation marks and
citations omitted]; see Islamic Republic of Iran v Pahlavi, 62
NY2d 474 [1984], cert
denied 469 US 1108 [1985]; Harleysville Ins. Co. v Ermar Painting
& Contr., Inc., 8
AD3d 229 [2004]; Korea Exch. Bank v A.A. Trading Co., 8 AD3d 344
[2004]). 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 [2009]). "The court has discretion whether
[or not] to retain
jurisdiction" (Rosenberg v Stikeman Elliott, LLP, 44 AD3d 840,
841 [2007]). The court's
determination will not be disturbed on appeal "absent an improvident
exercise of
. . . discretion or a failure to consider the relevant factors" (Brinson
v Chrysler
Fin., 43 AD3d 846, 848 [2007]; see Islamic Republic of Iran v
Pahlavi, 62 NY2d
474 [1984]; Cheggour v R'Kiki, 293 AD2d 507, 508 [2002]).

Here, even though the defendants are New York residents, their
renewed motion to dismiss
the complaint on the ground of forum non conveniens should have been
granted. The record
establishes that the injured plaintiff ingested Xtreme Lean in Georgia,
and that his alleged injury
and all of his subsequent medical treatment for that alleged injury
occurred in Georgia.
Furthermore, all of the injured plaintiff's treating physicians and his
medical records are located
in Georgia. There are also additional fact witnesses that reside in
Georgia. While the defendants
have not produced affidavits from those witnesses showing that it would
be a hardship for them
to travel to New York to testify, it appears that the plaintiffs have
frustrated the defendants'
efforts to obtain discovery and depositions from those witnesses in
Georgia. This has made it
difficult, if not impossible, for the defendants to produce these
affidavits. Under these
circumstances, since it appears that all or most of the evidence that
will be required from the
defendants would be in the form of documents, and since the defendants
have agreed to be
subject to subpoena in Georgia, which appears to be available as an
alternate forum, the Supreme
Court improvidently exercised its discretion in denying the defendants'
renewed motion to
dismiss the complaint on the ground of forum non conveniens (see
Prestige Brands, Inc. v
Hogan & Hartson, LLP, 65 AD3d 1028 [2009]; Brinson v Chrysler
Fin., 43 AD3d
846 [2007]; Cheggour v R'Kiki, 293 AD2d at 508; Evdokias v
Oppenheimer,
123 AD2d 598 [1986]; see also Matter of Henry v Skratt, 11 AD3d
691 [2004]; cf.
Harleysville Ins. Co. v Ermar Painting & Contr., Inc., 8 AD3d
229 [2004]).

In order to assure the availability of a forum for the action,
our reversal and granting of the
defendants' motion to dismiss the complaint pursuant to CPLR 327 is
conditioned on the
defendants stipulating to waive jurisdictional and statute of
limitations defenses (see
CPLR 327 [a]; Turay v Beam Bros. Trucking, Inc., 61 AD3d 964
[2009]).

The bold is mine.

ROM testing with a touch of CPLR R. 4518

CPLR R. 4518 Business records

I was going to post this for another reason, but JT makes a good point.

Simanovskiy v Barbaro, 2010 NY Slip Op 03304 (App. Div., 2nd, 2010)

Neither plaintiff offered competent medical evidence to demonstrate
the existence of a significant range-of-motion limitation in the
cervical or lumbar regions of their spines contemporaneous with the
subject accident (see Bleszcz v Hiscock, 69 AD3d 890; Caraballo v Kim, 63 AD3d 976, 977; Niles v Lam Pakie Ho, 61 AD3d 657, 659; Washington v Mendoza, 57 AD3d 972; Magid v Lincoln Servs. Corp., 60 AD3d 1008).
Although the affirmations and affirmed [*2]medical
reports of the plaintiffs' treating physician, Dr. Boris Dudelzak,
found "decreased" range of motion in the cervical and lumbar regions of
both plaintiffs' spines, he failed to quantify the results of his
range-of-motion tests (see Barnett v Smith, 64 AD3d 669, 671; Kuchero v Tabachnikov, 54 AD3d 729, 730; Duke v Saurelis, 41 AD3d 770, 771).
Furthermore, the computerized range-of-motion tests referred to in Dr.
Dudelzak's affirmations were not in admissible form because they were
not affirmed by someone with personal knowledge of the facts (see Taylor v Flaherty, 65 AD3d 1328; see also Luna v Mann, 58 AD3d 699, 700; Washington v Mendoza, 57 AD3d 972). Without
admissible evidence of quantified range-of-motion limitations
contemporaneous with the accident, the plaintiffs could not have
established the duration of the injuries required to raise a triable
issue of fact as to whether they sustained a serious injury under the
permanent consequential limitation or significant limitation of use
categories of the no-fault law (see Kuchero v Tabachnikov, 54
AD3d at 730; Ferraro v Ridge Car Serv., 49 AD3d 498).

The affirmed magnetic resonance imaging reports of the
plaintiffs' radiologist, which indicated that the plaintiff Boris
Simanovskiy suffered from bulging cervical and lumbar discs, and that
the plaintiff Nadezhda Simanovskaya suffered from a torn meniscus, also
were insufficient to raise a triable issue of fact. The existence of
bulging discs and torn ligaments is not evidence of a serious injury in
the absence of objective evidence of the extent and duration of the
alleged physical limitations resulting from these injuries (see Casimir v Bailey, 70 AD3d 994; Bleszcz v Hiscock, 69 AD3d 890; Mora v Riddick, 69 AD3d 591; Caraballo v Kim, 63 AD3d 976, 977-978).

And JT found somene making a peculiar argument in Family Court.

Matter of Fortunato v Murray, 2010 NY Slip Op 03122 (App. Div., 2nd, 2010)

The father thereafter filed an objection to the Support Magistrate's
order on the ground that the Support Magistrate erroneously excluded his
medical records from evidence. The Family Court denied the objection,
stating, in an order dated November 19, 2008, that

"[the father] objects to the Support Magistrate's order
on the grounds that the doctor's records dated July 8, 2008, which the
Support Magistrate did not allow into evidence should have been admitted
into evidence. The Support Magistrate denied petitioner's request based
on the fact that the records are hearsay as they deprive respondent of
the right to confront the witness. This Court agrees. The [father]
refers to CPLR 4518(a). This section refers to business records, not
doctors office records or notes."

Contrary
to the Family Court's general statement of the applicable law, "[a]
physician's office records, supported by the statutory foundations set
forth in CPLR 4518(a), are admissible in evidence as business records.
However, medical reports, as opposed to day-to-day business entries of a
treating physician, are not admissible as business records where they
contain the doctor's opinion or expert proof" (Matter of
Bronstein-Becher v Becher, 25 AD3d 796, 797 [internal quotation
marks and citations omitted]; see Batts v Rutrick, 298 AD2d 417; Napolitano
v Branks, 141 AD2d 705, 705-706). Moreover, a physician's office
records "may be received as evidence despite the fact that a physician
is available to testify as to the substance and contents of the records"
(Napolitano v Branks, 141 AD2d at 705-706; see Clarke v New
York City Tr. Auth., 174 AD2d 268). Here, upon the father's appeal
of the Family Court's order, this Court does not have the benefit of the
actual medical documents in dispute since the documents are not part of
the original papers before this Court. Thus, from the record, it is
unclear whether the subject documents were the type which this Court
views as admissible. Accordingly, we remit the matter to the Family
Court, Nassau County, for a review by the Support Magistrate of the
subject medical documents in light of and pursuant to the aforementioned
standard as to admissibility.

And one more that I found.  Of course I realized that I read the case about five seconds after I initially published this post.

Elshaarawy v U-Haul Co. of Miss., 2010 NY Slip Op 03273 (App. Div., 2nd, 2010)

On appeal, the defendants contend that the Supreme Court erred in
granting the plaintiff's motion for summary judgment on the issue of
serious injury to his right knee under the 90/180 day category of
Insurance Law § 5102(d). We agree. As the proponent of the summary
judgment motion, the plaintiff had the burden of making a prima facie
showing that he suffered a serious injury pursuant to Insurance Law §
5102(d), and that his injury was causally related to the accident (see Autiello v Cummins, 66 AD3d 1072; McHugh v Marfoglia, 65 AD3d 828, 829; LaForte v Tiedemann, 41 AD3d 1191, 1192; Ellithorpe v Marion, 34 AD3d 1195). The
plaintiff satisfied this burden by submitting the affirmation of his
orthopedic surgeon and his own affidavit, which established that as a
result of the accident he had sustained a "a medically determined
injury" to his right knee which prevented him from performing
substantially all of his usual and customary daily [*3]activities
for at least 90 of the first 180 days following the accident (Insurance
Law § 5102[d]; see Ellithorpe v Marion, 34 AD3d 1195,
1197). However, in opposition, the defendants raised a triable issue of
fact as to whether the plaintiff's knee injuries were caused by the
subject accident by submitting the affirmation of their examining
orthopedic surgeon, and the plaintiff's ambulance report and hospital
emergency room records, which indicated that he made no complaints of
knee pain immediately after the accident, and that examination of his
knees revealed no swelling. Although the ambulance report and hospital
emergency room records were uncertified, a defendant may rely upon
unsworn medical reports and uncertified records of an injured
plaintiff's treating medical care providers in order to demonstrate the
lack of serious injury (see Hernandez v Taub, 19 AD3d 368; Kearse v New York City Tr. Auth., 16 AD3d 45,
47; Itkin v Devlin, 286 AD2d 477; Abrahamson v Premier Car
Rental of Smithtown, 261 AD2d 562; Pagano v Kingsbury, 182
AD2d 268, 271). Accordingly, the plaintiff's motion for summary judgment
on the issue of serious injury to his right knee under the 90/180 day
category should have been denied. Since the jury was instructed that its
damages award must include compensation for the plaintiff's knee
injuries, which the Supreme Court determined to be causally linked to
the accident, the jury did not expressly find that the plaintiff
sustained a significant limitation of use of his right knee, and the
jury did not specifically allocate damages to compensate the plaintiff
for injuries to any particular parts, functions, or systems of his body,
the judgment must be reversed, and a new trial on the issue of damages
must be granted.

We further note that the Supreme Court erred in permitting the
plaintiff's treating neurologist to testify as to the contents of a
report interpreting magnetic resonance imaging (hereinafter MRI) films
of the plaintiff's cervical spine, which was prepared by a radiologist
who did not testify at trial (see Wagman v Bradshaw, 292 AD2d 84;
see also Clevenger v Mitnick, 38 AD3d 586,
587; Jemmott v Lazofsky, 5 AD3d 558, 560; Beresford
v Waheed, 302 AD2d 342, 343; DeLuca v Ding Ju Liu, 297 AD2d
307). This testimony was improperly admitted because the MRI films were
not in evidence, the plaintiff failed to elicit sufficient proof to
establish that the MRI report interpreting the films was reliable, and
the defendants had no opportunity to cross-examine the radiologist who
prepared the report (see Wagman v Bradshaw, 292 AD2d at 89-90).