Author: DMG

“the case is already in the gate, so to speak”

Rubin v SMS Taxi Corp., 2010 NY Slip Op 02414 (App. Div., 1st, 2010)

As the motion court found, defendants met their initial burden of
producing evidentiary proof in admissible form sufficient to show that
plaintiff's neck and back injuries did not meet any serious injury
thresholds. Plaintiff's medical submissions were devoid of information
to substantiate his 90/180 claim. The plaintiff also failed to raise an
issue of fact as to any other category from Insurance Law § 5102 because
he did not show: (1) what medical tests were performed, (2) the
objective nature of the tests, (3) what the normal range of motion
should be and (4) the significance of plaintiff's limitations. Plaintiff
thus failed to raise an issue of fact as to the claims for permanent
loss, permanent consequential limitation and significant limitation of
use of a body part, system or function (see Marsh v City of New York, 61 AD3d 552
[2009]; Valentin v Pomilla, 59 AD3d 184, 186 [2009]).
Further, plaintiff's unsworn affirmation is insufficient to explain his
cessation of treatment (see Pommells v Perez, 4 NY3d 566, 574
[2005]).

Plaintiff also failed to offer the requisite competent medical
proof of incapacity during 90 of the first 180 days following the
accident (see Moses v Gelco Corp., 63 AD3d 548 [2009];
Dr. Valderrama's assertion that he advised plaintiff to take off from
work until at least July 10 after [*2]the
June 16 accident does not satisfy this requirement. Plaintiff's claimed
inability to perform his job was also not supported by documentation
from his employer (see Ortiz v Ash Leasing, Inc., 63 AD3d 556
[2009]).

However, the motion court found that plaintiff did meet the
serious injury threshold on his claim for significant disfigurement of a
body part in that the scar on his face "is permanent, discolored and no
treatment can improve it." This portion of the motion court's ruling is
not an issue on appeal. At issue on the motion for clarification or
reconsideration is whether or not plaintiff can still present to the
jury the injuries the court found did not meet the "serious injury"
threshold within the meaning of Insurance Law § 5102(d). "Once a prima
facie case of serious injury has been established and the trier of fact
determines that a serious injury has been sustained, plaintiff is
entitled to recover for all injuries incurred as a result of the
accident" (Obdulio v Fabian, 33 AD3d 418, 419 [1st Dept
2006]; see also Prieston v Massaro, 107 AD2d 742 [2d Dept 1985]; Marte v New York City Transit Auth., 59 AD3d 398,
399 [2d Dept 2009]). Consequently, plaintiff is entitled to present his
claim involving facial scarring to meet the threshold for serious
injury under Insurance Law § 5102(d)(iii) (significant disfigurement).
Once a jury determines that plaintiff has met the threshold for serious
injury, the jury may award damages for all of plaintiff's injuries
causally related to the accident, even those not meeting the serious
injury threshold. Whether plaintiff's back and neck injuries were
causally related to the accident are questions of fact for the jury to
resolve.

The legislative intent of New York's No-Fault law was to
"significantly reduce the number of automobile personal injury cases
litigated in the courts," (Licari v Elliot, 57 NY2d 230, 236
[1982]) and to "weed out frivolous claims and limit recovery to
significant injuries" (Dufel v Green, 84 NY2d [1995]).
Accordingly, once an alleged claim meets at least one of the serious
injury thresholds, the statute's gate keeping function, to reduce
caseloads by limiting what the courts adjudicate, is satisfied. As the
case is already in the gate, so to speak, judicial economy is no longer a
reason to preclude plaintiff from presenting to the jury all injuries
causally related to the accident. This comports with the general
principle that a plaintiff is entitled to recover damages that justly
and fairly compensates him or her for all injuries proximately
caused by the accident.

The court denied the motion for reconsideration or clarification
of the initial order, but because it did address the merits in adhering
to the initial determination, the subsequent order is appealable (see Nawi v Dixon, 59 AD3d 363, 364 [2009]).

The bold is mine.

Not Aggrieved (CPLR § 5511)

DKFT Pizza, Inc. v Riviera Plaza, LLC, 2010 NY Slip Op 02086 (App. Div., 2nd, 2010)

Only "[a]n aggrieved party or a person substituted for him may appeal from any appealable . . . order" (CPLR 5511). "A party is aggrieved by an order when it directly affects that party's individual rights" (Berrechid v Shahin, 60 AD3d 884, 884; see Carollo v Northern Westchester Hosp. Ctr., 5 AD3d 715). Since the Supreme Court's order, which preliminarily enjoined the defendants DCB Food Services Corp., d/b/a Sandella's Cafe, and Danielle DiBenedetto from selling certain food and beverage items at their cafÉ, did not affect the rights of the defendants Riviera Plaza, LLC, and Riviera Plaza Associates, the latter two are not aggrieved by the order, and the appeal must be dismissed (see generally Matter of Commercial Bank of Informatics & Computing Technique Dev. Bank Informtechnika v Ostashko, 274 AD2d 516; Law v Benedict, 197 AD2d 808; see also Won's Cards v Samsondale/Haverstraw Equities, 165 AD2d 157, 162).

The bold is mine.

Civil Contempt

Astrada v Archer, 2010 NY Slip Op 02078 (App. Div., 2nd, 2010)

Contrary to Felton's contention, the Supreme Court properly granted that branch of the plaintiff's motion which was to hold her in contempt of court based upon her failure to comply with the order dated February 14, 2007. In order to prevail on a motion to punish a party for civil contempt, the movant must demonstrate that the party charged violated a clear and unequivocal court order, thereby prejudicing a right of another party to the litigation (see Judiciary Law § 753[A][3]; Orange County-Poughkeepsie Ltd. Partnership v Bonte, 37 AD3d 684, 686; Goldsmith v Goldsmith, 261 AD2d 576, 577). To satisfy the prejudice element, it is sufficient to allege and prove that the contemnor's actions were calculated to or actually did defeat, impair, impede, or prejudice the rights or remedies of a party (see Orange County-Poughkeepsie Ltd. Partnership v Bonte, 37 AD3d at 686; Yeshiva Tifferes Torah v Kesher Intl. Trading Corp., 246 AD2d 538).

This next one provides a comparison to the requirements for criminal contempt.

Town of Riverhead v T.S. Haulers, Inc., 68 AD3d 1103 (App. Div., 2nd, 2009)

To prevail on a motion to punish for civil contempt, the movant must establish, by clear and convincing evidence (1) that a lawful order of the court, clearly expressing an unequivocal mandate, was in effect, (2) that the order was disobeyed and the party disobeying the order had knowledge of its terms, and (3) that the movant was prejudiced by the offending conduct (see Coyle v Coyle, 63 AD3d 657, 658 [2009]; Kalish v Lindsay, 47 AD3d 889 [2008]; Galanos v Galanos, 46 AD3d 507 [2007]; Biggio v Biggio, 41 AD3d 753 [2007]; Gloveman Realty Corp. v Jefferys, 29 AD3d 858, 859 [2006]). To prevail on a motion to punish for criminal contempt, the movant must establish, beyond a reasonable doubt, the willful disobedience of a court's lawful mandate (see Judiciary Law § 750 [A] [3]; § 751; Muraca v Meyerowitz, 49 AD3d 697 [2008]; see also Matter of Rubackin v Rubackin, 62 AD3d 11, 19 [2009]). Here, the plaintiff did not meet its burden (see Wheels Am. N.Y., Ltd v Montalvo, 50 AD3d 1130 [2008]; Panza v Nelson, 54 AD2d 928 [1976]). Therefore, the hearing court properly denied the plaintiff's motion to hold the defendant in civil and/or criminal contempt.

The bold is mine.

Jurors: CPLR § 4106 (Alternates) and and CPLR § 4113 (Disagreements)

CPLR § 4106 Alternate jurors
CPLR § 4113 Disagreement by jury
(a) Unanimous verdict not required.  A verdict may be rendered by not less than five-sixths of the jurors constituting a jury.

(b) Procedure where jurors disagree.  Where five-sixths of the jurors constituting a jury cannot agree after being kept together for as long as is deemed reasonable by the court, the court shall discharge the jury and direct a new trial before another jury.

This is the first time 4113 appears on this blog.  We are going to throw a party.  Huzzah.

Cornell Univ. v Gordon, 2010 NY Slip Op 02072 (App. Div., 1st, 2010)

Plaintiffs, who are defendant's landlord, originally sought attorneys' fees pursuant to a stipulation of settlement that provided for such fees in the event of defendant's noncompliance with the stipulation, and were awarded a money judgment. Inasmuch as $31,434.43 of the judgment on appeal was awarded to compensate plaintiffs for their attorneys' fees incurred in enforcing the money judgment, as opposed to enforcing the stipulation underlying the money judgment, that portion of the jury award amounted to a "fee on a fee" not expressly authorized by the stipulation or by statute, and is therefore not recoverable (see David Z. Inc. v Timur on Fifth Ave., 7 AD3d 257, 258 [2004]; Getty Petroleum Corp. v G.M. Triple S. Corp., 187 AD2d 483, 484 [1992]).

The fee award of $15,000, compensating plaintiffs' attorneys for their efforts to compel defendant's compliance with the term of the stipulation that required defendant, at her sole cost and expense, to remove the final remaining Department of Buildings violation issued against the building because of her unauthorized apartment renovation, was not excessive under the circumstances.

Inasmuch as defendant fully consented to -— indeed even proposed -— having the two alternate jurors deliberate and render a verdict with the regular jurors, she has failed to preserve her argument that the court committed reversible error in submitting the case to a jury of eight persons rather than six (see Fader v Planned Parenthood of N.Y. City, 278 AD2d 41 [2000]; see also Sharrow v Dick Corp., 86 NY2d 54, 59-60 [1995]; Waldman v Cohen, 125 AD2d 116, 118-124 [1987]). Also unpreserved, for failure to timely object, is defendant's argument that the 6 to 2 jury votes in favor of plaintiffs were contrary to the requirement of CPLR 4113(a) that a verdict must be rendered by not less than five-sixths of the jurors constituting a jury (see Harvey v B & H Rests., Inc., 40 AD3d 241, 241 [2007]). We note, however, with respect to the merits, that while [*2]CPLR 4106 requires that alternate jurors be discharged after the final submission of the case, there was no substitution here of the two alternates for regular jurors after deliberations had begun, the circumstance that invalidated the jury deliberations in Gallegos v Elite Model Mgt. Corp. (28 AD3d 50, 54-55 [2005]), and that all eight jurors deliberated as a group from start to finish and reached a verdict together.

We reject defendant's contention that the court erred in giving a missing witness charge due to her failure to testify. While much of the trial indeed focused on the amount of attorneys' fees that would constitute a reasonable award, an issue about which defendant would not likely have had anything meaningful to contribute, the issue of whether attorneys' fees were properly awardable at all was also submitted for the jury's consideration, an issue that turned, at least in part, on the actions that defendant took to have the remaining plumbing violation removed. As plaintiffs' lay witness testified that defendant was not cooperative in producing the documents necessary to certify removal of the plumbing violation, defendant could be expected to dispute those facts or to explain why she cannot (see Crowder v Wells & Wells Equip., Inc., 11 AD3d 360, 361 [2004]).

The bold is mine.

Pleading Defamation and Fraud. CPLR R. 3016(a)(b)

Moreira-Brown v City of New York, 2010 NY Slip Op 02063 (App. Div., 1st, 2010)

In this action for defamation and emotional distress, the verified complaint alleges that on or about September 12, 1998, defendant Police Detective Raymond Rivera, acting as agent for his codefendants, made written and verbal defamatory statements that plaintiff "had committed rape and sexual assault and was being sought by the police for arrest and prosecution [for] rape and sexual assault." These words were not demarcated as a quotation in the complaint. Dismissing the complaint, the motion court held that plaintiff had not complied with CPLR 3016(a) because the complaint "does not set forth the particular words alleged to be defamatory."

While a complaint alleging defamation must allege the particular spoken or published words on which the claim is based, the words need not be set in quotation marks (see John Langenbacher Co. v Tolksdorf, 199 AD2d 64 [1993]). When construed in the light most favorable to plaintiff, the complaint alleges that Detective Rivera specifically stated that plaintiff "had committed rape and sexual assault," and "was being sought by the police for arrest and [*2]prosecution" for those crimes. This allegation is sufficient to meet the requirements of CPLR 3016(a).

Colasacco v Robert E. Lawrence Real Estate, 68 AD3d 706 (App. Div., 2nd, 2009)

CPLR 3016 (b) provides, in relevant part, that "[w]here a cause of action or defense is based upon misrepresentation, fraud, mistake . . . the circumstances constituting the wrong shall be stated in detail." The specificity requirements are relaxed where it is alleged that the particular circumstances of the alleged fraud are peculiarly within the defendants' knowledge (see Pludeman v Northern Leasing Sys., Inc., 10 NY3d 486, 491-492 [2008]; Pericon v Ruck, 56 AD3d 635, 636 [2008]).

"The essential elements of a cause of action sounding in fraud are a misrepresentation or a material omission of fact which was false and known to be false by defendant, made for the purpose of inducing the other party to rely upon it, justifiable reliance of the other party on the misrepresentation or material omission, and injury" (Orlando v Kukielka, 40 AD3d 829, 831 [2007]; see Ross v DeLorenzo, 28 AD3d 631, 636 [2006]). Here, the complaint fails to allege the elements of fraud with sufficient specificity. In particular, the complaint fails to allege that DiCorato's alleged misrepresentations to the plaintiffs were known by the defendants to be false. Furthermore, it is clear from the face of the complaint that the plaintiffs' supposed reliance upon DiCorato's alleged misrepresentations concerning the location of the property's boundary lines was unreasonable as a matter of law (see Orlando v Kukielka, 40 AD3d at 831). There was no allegation in the complaint that the dimensions and boundary lines of the subject property were within the exclusive knowledge of the defendants. Indeed, the plaintiffs could easily have ascertained these facts through the use of ordinary means (see Esposito v Saxon Home Realty, 254 AD2d 451 [1998]; Bennett v Citicorp Mtge., Inc., 8 AD3d 1050 [2004]; Mosca v Kiner, 277 AD2d 937, 938 [2000]). Accordingly, the Supreme Court should have dismissed the fraud cause of action pursuant to CPLR 3211 (a) (7).

Similarly, the cause of action sounding, in effect, in negligent misrepresentation also fails to meet the specificity requirements of CPLR 3016 (b). Furthermore, in order to prevail on such a cause of action, a plaintiff must establish that the defendant had a duty to use reasonable care to impart correct information due to a special relationship between the parties, that the information was incorrect or false, and that the plaintiff reasonably relied upon the information (see Grammer v Turits, 271 AD2d 644, 645 [2000]). The complaint fails to allege that the defendants had a duty to the plaintiffs to impart correct information arising out of a special relationship between them. Moreover, as with the fraud cause of action, the complaint fails to allege circumstances under which the plaintiffs' reliance upon DiCorato's alleged misrepresentations could be considered reasonable or justifiable. Thus, the Supreme Court should also have dismissed the second cause of action pursuant to CPLR 3211 (a) (7).

The bold is mine.

A tricky case (CPLR R. 3216)

CPLR R. 3216
Want of prosecution

Cadichon v Facelle, 2010 NY Slip Op 02058 (App. Div., 1st, 2010)

It is well settled that to vacate the dismissal of an action dismissed pursuant to CPLR 3216, a plaintiff must demonstrate both a reasonable excuse for the failure to comply with the 90-day demand to serve and file a note of issue and a meritorious cause of action (Walker v City of New York, 46 AD3d 278 [2007]). Plaintiffs failed to offer a reasonable excuse for their failure to file the note of issue. Indeed, while plaintiffs contended that defendants' noncompliance with their discovery obligations was to blame, and that such noncompliance was preventing them from filing a note of issue, "[they] had [their] remedies during the lengthy period of general delay (CPLR 3124, 3126)" (McDonald v Montefiore Med. Ctr., 60 AD3d 547, 547 [2009]).

While we do not disagree with the dissent's conclusion that some of the delay was occasioned by defendant, our decision rests on the record and controlling law which required plaintiffs to take action. Once served with a 90-day demand, plaintiffs were required to either seek an extension to comply with the 90-day notice, move to vacate the same (Brady v Benenson Capital Co., 2 AD3d 382, 382 [2003], lv denied 2 NY3d 702 [2004]) or file a note of issue [*2](CPLR 3216[b][3]). Plaintiffs did none of these things and their case was thus properly dismissed. Subsequent to dismissal, vacatur required a quantum of proof which plaintiffs utterly failed to satisfy with their first motion, and which they were unable to cure with the their second motion.

Plaintiffs also impermissibly addressed the merits of their action for the first time on reply (Migdol v City of New York, 291 AD2d 201, 201 [2002]; Lumbermens Mut. Cas. Co. v Morse Shoe Company, 218 AD2d 624, 625-626 [1995]; Ritt v Lenox Hill Hosp., 182 AD2d 560, 562 [1992].

The excuse of law office failure offered on the motion to reargue and renew did not constitute a reasonable excuse (Walker, 46 AD3d at 280-281). Further, plaintiffs failed to explain why they failed to present the excuse of law office failure on the original motion.

Remember the recent amendment to CPLR 205.  Why doesn't it apply here?  The dissent explains.

On the motion to renew, counsel explained that the conference resulting in the May 3, 2007 so-ordered stipulation was handled by an "of counsel" attorney, and thus, the December 27, 2007 deadline set by the court for the filing of the note of issue was not entered into the firm's calendar system as would ordinarily be done. Counsel further stated that had he known about the deadline, he would have moved for an extension of time to file the note of issue and/or to strike defendants' answers based on defendants' failure to comply with discovery. I would hold that this failure to calendar the date was, under the circumstances, excusable law office failure (see Kaufman v Bauer, 36 AD3d 481 [2007] [deadline missed due to personnel change at law firm]; Werner v Tiffany & Co., 291 AD2d 305 [2002] [counsel misplaced calendar and in reconstructing commitments forgot deadline]), particularly given defendants' delays and plaintiffs' inability, as a direct result thereof, to certify that discovery was complete. While this case was decided before the effective date of the amendment to CPLR 205, which provides that an action may not be dismissed under CPLR 3216 unless the judge sets forth "on the record the specific conduct constituting the neglect, which conduct shall demonstrate a general pattern of delay in proceeding with the litigation," it is not without significance that plaintiffs did not engage in a pattern of neglect.

While I agree with the motion court that the better practice would have
been for plaintiffs to have made a motion to compel discovery or for an
extension of time to file the note of issue, the failure to take these
steps should not result in dismissal of a meritorious cause of action.
It is [*4]the long established public
policy of this State to decide cases on their merits (see Kaufman v
Bauer, 36 AD3d at 483).

The bold is mine.

Can’t meet prima facie burden by adding new evidence in reply. And CPLR R. 2106

Yeum v Clove Lakes Health Care & Rehabilitation Ctr., Inc., 2010 NY Slip Op 01930 (App. Div., 2nd, 2010)

Clove Lakes' failure to make a prima facie showing required the denial of the motion, regardless of the sufficiency of the opposition papers (see Winegrad v New York Univ. Med. Ctr., 64 NY2d 851, 853). Clove Lakes' prima facie burden cannot be met by evidence submitted for the first time in its reply papers (see David v Bryon, 56 AD3d 413; Barrera v MTA Long Is. Bus, 52 AD3d 446).

And you can't submit an affirmation that does not actually affirm. 

Niazov v Corlean Cab Corp., 2010 NY Slip Op 01941 (App. Div., 2nd, 2010)

The defendants failed to meet their prima facie burden 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 NY2d 345; Gaddy v Eyler, 79 NY2d 955, 956-957). In support of their motion, the defendants relied upon, inter alia, the report of an orthopedic surgeon who examined the plaintiff. The report was without any probative value since he failed to affirm the contents of his report under the penalties of perjury, as required by CPLR 2106 (see Magro v He Yin Huang, 8 AD3d 245; Slavin v Associates Leasing, 273 AD2d 372; Baron v Murray, 268 AD2d 495; Cwiekala v Siddon, 267 AD2d 193). Without the report, the defendants could not meet their burden on the motion.

Since the defendants failed to meet their prima facie burden, it is unnecessary to consider whether the papers submitted by the plaintiff in opposition were sufficient to raise a triable issue of fact (see Gaccione v Krebs, 53 AD3d 524; Coscia v 938 Trading Corp., 283 AD2d 538).

In both of these cases the motions were denied without needing to look at the opposition papers.  Bad papers get motions denied, even if the opposition papers are horrible.  Even if there are no opposition papers.  The movant still has it's burden.

Finally, parties can't affirm, no matter how hard they swear under penalties of perjury.

I forgot to post this old subpoena decision, but it reminded me to post two recent decisions

Hart v Kinney Drugs, Inc., 67 AD3d 1154 (App. Div., 3rd, 2009)

In 2007, after relations between the parties had deteriorated and the tenant brought an action against two of the landlords' principals, the landlords commenced this action alleging that, among other things, the tenant had breached the parties' agreements by failing to pay percentage rents for the three stores. The tenant answered that the memorandum had terminated its obligation to pay percentage rents for those stores and served a subpoena for the records of the landlords' bank. When the landlords moved to quash the subpoena, the tenant cross-moved for summary judgment dismissing the cause of action.

Finding the memorandum to be ambiguous as to whether the tenant was obligated to pay percentage rents for the three stores, Supreme Court denied the tenant's cross motion and partially denied the landlords' motion to quash by greatly narrowing the scope of the tenant's subpoena. The landlords then moved to renew the motion to quash the subpoena in its entirety and attempted to present a further "Global Lease Agreement" in support of its position. That motion also was denied. The landlords now appeal from Supreme Court's orders, contending that the memorandum is not ambiguous since it is silent as to percentage rents for the three stores and, therefore, the lease terms regarding percentage rents remain unchanged. The landlords argue that, in the absence of any ambiguity, the information sought by the tenant's subpoena is extrinsic evidence that cannot be considered in construing the memorandum.

There can be no real dispute that the tenant's subpoena seeks extrinsic evidence. Inasmuch as extrinsic evidence of the parties' intent may be considered only if their agreement is ambiguous (see Greenfield v Philles Records, 98 NY2d 562, 569 [2002]; R/S Assoc. v New York Job Dev. Auth., 98 NY2d 29, 33 [2002]), the landlords' motion to quash necessarily depends upon whether the memorandum is ambiguous. It is well settled that "[w]hether 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 [1990]). In addition, while "silence does not equate to contractual ambiguity" (Greenfield v Philles Records, 98 NY2d at 573; see Reiss v Financial Performance Corp., 97 NY2d 195, 199 [2001]), an omission as to a material issue can create an ambiguity and allow the use of extrinsic evidence where the context within the document's four corners suggests that the parties intended a result not expressly stated (see Louis Dreyfus Energy Corp. v MG Ref. & Mktg., Inc., 2 NY3d 495, 500 [2004]; Barrow v Lawrence United Corp., 146 AD2d 15, 18-19 [1989]).

***

Inasmuch as the memorandum can be read as providing either a new, increased single rent term that replaced the prior base and percentage rents for the three stores, as the tenant claims, or new, increased base rents in addition to the existing percentage rents, as the landlords claim, it is ambiguous. In view of the questions raised by the memorandum's inconsistent treatment of these two groups of stores, unexplained within its four corners, Supreme Court properly determined that extrinsic evidence is needed to determine the parties' intent in executing it (see Louis Dreyfus Energy Corp. v MG Ref. & Mktg., Inc., 2 NY3d at 500; Belknap v Witter & Co., 61 NY2d 802, 804 [1984], affg 92 AD2d 515 [1983]; State of New York v Industrial Site Servs., Inc., 52 AD3d 1153, 1156 [2008]; Barrow v Lawrence United Corp., 146 AD2d at 18).

Given that ruling, Supreme Court also did not abuse its discretion in permitting disclosure of the landlords' records held by a nonparty to the extent that they could reveal the parties' intent in executing the memorandum. The tenant sufficiently demonstrated that the information which it sought was material and necessary. Further, the court carefully limited the scope of disclosure to shield confidential financial information, making it unnecessary for the tenant to show that the information is indispensable (see generally Allen v Crowell-Collier Publ. Co., 21 NY2d 403, 406-407 [1968]; Jordan v Blue Circle Atl., 296 AD2d 752, 752-753 [2002]; cf. Saratoga Harness Racing v Roemer, 274 AD2d 887, 889 [2000]).

Finally, in light of the landlords' failure to adequately explain the omission of the Global Lease Agreement from their submission on the parties' initial motions, Supreme Court did not abuse its discretion by denying the motion to renew (see Matter of Mouawad, 61 AD3d 1169, 1169-1170 [2009]; Kahn v Levy, 52 AD3d 928, 929 [2008]).

Almost on topic is a more recent decision: Gitlin v Chirinkin, 2010 NY Slip Op 01920 (App. Div., 2nd, 2010)

The Supreme Court did not improvidently exercise its discretion in denying that branch of the appellants' motion which was to compel the plaintiff to disclose his tax returns and bank records. The appellants failed to demonstrate that any information in the tax returns was indispensable to their defense or counterclaim and could not be obtained from other sources (see Pugliese v Mondello, 57 AD3d 637; Latture v Smith, 304 AD2d 534, 536; see also Banigan v Hill, 57 AD3d 463; Benfeld v Fleming Props., LLC, 44 AD3d 599). Moreover, the appellants failed to demonstrate that the plaintiff's bank records were material and necessary to their defense or counterclaim (see CPLR 3101[a]; Auerbach v Klein, 30 AD3d 451).

The plaintiff sustained his burden of demonstrating that the appellants should be required to disclose their tax returns (see Kerman v Martin Friedman, C.P.A., P.C., 21 AD3d 997). In addition, the plaintiff also clearly demonstrated that the bank records he requested of the appellants were material and necessary to the pursuit of his claims that the defendants had defrauded him. Accordingly, the Supreme Court providently exercised its discretion in denying that branch of the appellants' motion which was for a protective order pursuant to CPLR 3103.

Tangentially related is Riccuiti v Consumer Prod. Servs., LLC, 2010 NY Slip Op 01947 (App. Div., 2nd, 2010)

Thereafter, the plaintiff moved, inter alia, for summary judgment on the issue of liability and pursuant to CPLR 3126 to strike the answer insofar as asserted on behalf of Kowalski, based upon Kowalski's failure to appear for a court-ordered deposition.

***

"Although actions should be resolved on the merits whenever possible, where the conduct of th
e resisting party is shown to be willful and contumacious, the striking of a pleading is warranted" (Savin v Brooklyn Mar. Park. Dev. Corp., 61 AD3d 954, 954). Here, the Supreme Court providently exercised its discretion in striking the answer insofar as asserted on behalf of Kowalski. The record reflects that the answer was interposed on behalf of both defendants, and that Kowalski did not raise any defenses based upon lack of personal jurisdiction. In opposition to that branch of the plaintiff's motion which was to strike the answer insofar as asserted on behalf of Kowalski, defense counsel represented that his office was unable to locate Kowalski and, therefore, could not produce him for a deposition. The mere fact that Kowalski may have been outside the State of New York, and had made himself unavailable, did not preclude the Supreme Court from striking the answer [*2]insofar as interposed by him for failure to appear at a court-ordered deposition (see Carabello v Luna, 49 AD3d 679, 680; Maignan v Nahar, 37 AD3d 557).

The bold is mine.

The Decision Controls. Fix with CPLR § 5019(a)

CPLR § 5019 Validity and correction of judgment or order; amendment of docket.

Hernandez v Willoughby Walk Apts. Corp., 2010 NY Slip Op 01923 (App. Div., 2nd, 2010)

At this juncture, the Supreme Court properly, in effect, denied that branch of the motion of the third-party defendant Rotech Enterprises, Inc. (hereinafter Rotech), which was for summary judgment dismissing the third-party causes of action for contractual indemnification and to recover damages for breach of contract to procure insurance insofar as asserted against it. In this regard, Rotech made its motion prior to the depositions of the parties and while substantial discovery remained outstanding (see Ramos v DEGI Deutsche Gesellschaft Fuer Immobilienfonds MBH, 37 AD3d 802, 803; Great S. Bay Family Med. Practice, LLP v Raynor, 35 AD3d 808, 809-810).

We note that, at the oral argument on the motion, the Supreme Court indicated that the denial thereof was "without prejudice to renew." However, the Supreme Court failed to indicate the [*2]same in the order appealed from. Where there is an inconsistency between an order and the decision upon which it is based, the decision controls (see Matter of Stewart, 65 AD3d 634, 635). Such an inconsistency may be corrected either by way of motion for resettlement or on appeal (see CPLR 5019[a]; Scheuering v Scheuering, 27 AD3d 446, 447). We therefore modify the order accordingly.