Author: DMG

Expert testimony and qualification

Espinal v Jamaica Hosp. Med. Ctr., 2010 NY Slip Op 01917 (App. Div., 2nd, 2010)

The appellants’ contention that the plaintiff’s expert was unqualified to give an expert opinion because the plaintiff did not provide evidence of his credentials is without merit. The plaintiff’s expert established his qualifications by attaching a curriculum vitae demonstrating that he was a board-certified neurologist (see Winney v County of Saratoga, 8 AD3d 944, 945). In any event, the expert’s alleged lack of experience is a factor which goes to the weight to be given to his opinion, and not to its admissibility (see Texter v Middletown Dialysis Ctr., Inc., 22 AD3d 831; Julien v Physician’s Hosp., 231 AD2d 678, 680; Ariola v Long, 197 AD2d 605). [*2]

Furthermore, the affidavit of the plaintiff’s expert was sufficient to raise a triable issue of fact. “It is well settled that an expert’s opinion must be based on facts in the record personally known to the witness, and that the expert may not assume facts not supported by the evidence in order to reach his or her conclusion” (Erbstein v Savasatit, 274 AD2d 445, 446; see Cassano v Hagstrom, 5 NY2d 643, 646; Plainview Water Dist. v Exxon Mobil Corp., 66 AD3d 754, 755). The expert’s opinion, taken as a whole, must also reflect an acceptable level of certainty in order to be admissible (see Matott v Ward, 48 NY2d 455, 459-460; Erbstein v Savasatit, 274 AD2d at 446). Contrary to the appellants’ contention, the affidavit of the plaintiff’s expert was neither so conclusory or speculative, nor without basis in the record, as to render it inadmissible (see Erbstein v Savasatit, 274 AD2d at 446; see also Dandrea v Hertz, 23 AD3d 332, 333). Rather, “[a]ny purported shortcomings in the affidavit went merely to the weight of the opinion” (Erbstein v Savasatit, 274 AD2d at 446). Since the parties offered conflicting expert opinions as to whether the alleged assault exacerbated the injuries the plaintiff sustained in the accident, a question of credibility arises which requires resolution by a jury (see Colao v St. Vincent’s Med. Ctr., 65 AD3d 660, 661; Dandrea v Hertz, 23 AD3d at 333; Barbuto v Winthrop Univ. Hosp., 305 AD2d 623, 624).

CPLR R. 3211/3212 timing: Interesting decision from App. Div., 1st

Fofana v 41 W. 34th St., LLC, 2010 NY Slip Op 01830 (App. Div., 1st, 2010)

On December 3, 2004, Fofana commenced an action against, inter alia,
41 West, GSL, and Winoker, and on February 28, 2006, he commenced a
separate action against Midboro. Both actions were filed in Supreme
Court, New York County.
[*2]

Previously, on August 5, 2004,
Haynes had commenced a personal injury action in Supreme Court, Bronx
County, against several of the same defendants. Eventually, the Haynes
action was consolidated in the Bronx with plaintiff's two New York
County actions. Fofana was impleaded as a third-party defendant in the Haynes
action.

By notice dated October 5, 2006, the defendants in the Haynes action
moved for summary judgment on the grounds, inter alia, that the
evidence established that the freight elevator complied with the
elevator code in effect when built, and contained no defects at the time
of the accident. They contended that the elevator door was caused to be
opened by the force of being struck by plaintiff's and Haynes's weight,
as the two fought.

On August 17, 2007, the trial court granted the motion, on the
ground, inter alia, that there was no evidence that defendants had any
notice that the fourth floor hoistway doors had been defective prior to
the incident. In an order entered May 19, 2009, this Court upheld the
dismissal of the complaint, finding that defendants had made a prima
facie showing that the accident was not caused by any defect in the
hoistway door (62 AD3d 519, 521 [2009]). In particular, the Court noted
that an elevator inspector from the New York City Department of
Buildings who had inspected the accident scene within 80 minutes after
the accident, found that the sliding panel for the elevator door "was
bent and protruded into the hoistway in a manner indicating that a
substantial horizontal force had been exerted against the sliding panel"
(id. at 520). The Court also observed that the evidence
indicated that there had not been any problems with the hoistway doors
before the accident occurred (id.).

By notice dated August 31, 2007, two weeks after the trial court
granted summary judgment in the Haynes action, the defendants in
the Fofana action moved to amend their answers to assert the
affirmative defenses of collateral estoppel and res judicata, and, upon
the granting of said relief, for dismissal on those grounds pursuant to
CPLR 3211(5).

By order entered January 15, 2008, the court granted leave to
amend, but denied the motion to dismiss. In so doing, the court found
that, as discovery in the Fofana action had not been completed at
the time of the Haynes motion, Fofana was not in a position to
meaningfully litigate the issues raised on the motion to dismiss.

Subsequently, on February 19, 2008, defendants, who did not
appeal from the January 15 order, moved for leave to file a summary
judgment motion and, upon the granting of leave, for summary judgment
dismissing the complaint. In support of their motion, defendants noted
that the Haynes note of issue had been filed on March 7, 2006,
while the note of issue in this case was only filed on May 7, 2007. They
also observed that the Haynes summary judgment motion had been
served on all parties to the action, including Fofana, who was a
third-party defendant in that action.

Defendants argued they had a reasonable belief that plaintiff, a
party to the Haynes action, would be bound by the Haynes
decision, which was dispositive of all the issues herein. Thus, they
claimed, they made a motion to dismiss pursuant to CPLR 3211(a)(5),
rather than a motion for summary judgment pursuant to CPLR 3212. They
aver that this reasonable belief constitutes "good cause" for the delay
in moving for summary judgment. In opposition, Fofana argued that
defendants failed to show why they could not have sought alternative
relief when filing the motion to dismiss, and that the excuse was akin
to inexcusable law office failure.

The trial court denied the motion as untimely, finding that the
proffered excuse constituted law office failure, with the result that
the requisite good cause to entertain the motion had not been shown. The
court reasoned that defendants should have recognized that the motion [*3]to dismiss could be denied, and thus the
motion for summary judgment should have been made with the prior motion.
We reverse.

CPLR 3212(a) provides that the "court may set a date after which
no [dispositive] motion may be made," and, "[i]f no such date is set by
the court, such motion shall be made no later than one hundred twenty
days after the filing of the note of issue, except with leave of court
on good cause shown." In Brill v City of New York (2 NY3d 648 [2004]),
the Court of Appeals made clear that the statutory deadline should be
strictly enforced, in order to prevent the filing of "[e]leventh-hour
summary judgment motions," a practice that "ignores statutory law,
disrupts trial calendars, and undermines the goals of orderliness and
efficiency in state court practice" (id. at 650-651). It
concluded that the "good cause" called for by CPLR 3212(a) requires a
"satisfactory explanation for the untimeliness – rather than simply
permitting meritorious, nonprejudicial filings, however tardy" (id.
at 652) (see also Miceli v State Farm Mut. Auto. Ins. Co.,
3 NY3d 725 [2004]). This Court has subsequently observed that
"courts may not excuse a late motion, no matter how meritorious, upon a
perfunctory claim of law office failure" (Azcona v Salem, 49 AD3d 343, 343 [2008]).

In this case, however, it is undisputed that defendants made a
timely motion to dismiss on the grounds of collateral estoppel.
Moreover, in defending the "failure" to make a simultaneous motion for
summary judgment, they noted that Fofana, as a third-party defendant in
the Haynes action, had been served with the motion papers.
Regardless of whether he chose to submit papers in opposition to the
motion, he was put on notice that the defendants were taking the
position that the elevator door was not defective prior to the accident,
and that the accident occurred as a result of the force exerted by the
weight of the two combatants as they fell against the door. He thus had
the opportunity to litigate the issue, and yet declined. Furthermore,
since the note of issue had not yet been filed in his own action, Fofana
still had the opportunity to pursue further discovery with regard to
this defense, in the event such a motion was made in his own case.

Thus, defendants' averment that they had good cause not to file a
motion for summary judgment contemporaneously with the motion to
dismiss is valid. The disposition of the Haynes summary judgment
motion provided sufficient grounds either to invoke collateral estoppel
or to dismiss the Fofana case. The conditions for the
applicability of collateral estoppel are an identity of issue which has
been necessarily decided in the prior action and is decisive of the
present action, and a full and fair opportunity to contest the decision
now said to be controlling (Schwartz v Public Admin. of County of
Bronx, 24 NY2d 65, 71 [1969]). The issue of whether the elevator was
defective was at the heart of the Haynes case, and Fofana was a
party to that action. Even as a third-party defendant he had a vested
interest in opposing any contention that the elevator door was not the
cause of the accident. Like the codefendants in Schwartz, he was
in every respect an antagonist to the defendants/third-party plaintiffs
who impleaded him, and who asserted that the elevator door was not
defective (id. at 72).

We therefore conclude that defendants were not guilty of law
office failure in not also moving for summary judgment.

The bold is mine.

Interesting to Me (CPLR 3215; 4518; 3121; 602; 3018)

Of all the decisions that came out this past week, these are the ones that I read and though, "hey, that's interesting."

New S. Ins. Co. v Dobbins, 2010 NY Slip Op 01773 (App. Div., 2nd, 2010)

The Supreme Court properly, upon renewal and reargument, adhered to so much of its original determination as denied the plaintiff leave to enter judgment against the defendants James Dobbins, Jr., and Felita Dobbins, upon their default in answering the complaint. In support of its motion, the plaintiff offered the complaint, which was verified by plaintiff's counsel, and an affidavit of the plaintiff's investigator, neither of whom possessed personal knowledge of the facts constituting the claim (see CPLR 3215; Woodson v Mendon Leasing Corp., 100 NY2d 62, 70-71; Hosten v Oladapo, 44 AD3d 1006; Finnegan v Sheahan, 269 AD2d 491). The statements from the driver of the other vehicle that the plaintiff's investigator relied upon in his affidavit constituted inadmissible hearsay (see CPLR 4518[a]; Hochhauser v Electric Ins. Co., 46 AD3d 174, 179-183; Metropolitan Cas. Ins. Co. v Shaid, 23 Misc 3d 1140[A]). Accordingly, entry of a default judgment against these defendants was properly denied on the papers before the Supreme Court.

Ok, this one is a little older.  I accidentally put it with the others.  But since it's already here, I might as well keep it.

Tucker v Bay Shore Stor. Warehouse, Inc., 2010 NY Slip Op 00134 (App. Div., 2nd, 2010)

Contrary to the defendants' contentions, the Supreme Court did not improvidently exercise its discretion in denying that branch of their motion which was to compel the plaintiff to undergo a second independent medical examination. "The supervision of disclosure and the setting of reasonable terms and conditions therefor rests within the sound discretion of the trial court and, absent an improvident exercise of that discretion, its determination will not be disturbed" (Mattocks v White Motor Corp., 258 AD2d 628, 629 [internal quotation marks and citations omitted]; see Kaplan v Herbstein, 175 AD2d 200). While CPLR 3121 does not limit the number of examinations to which a party may be subjected, a party seeking a further examination must demonstrate the necessity for it (see Young v Kalow, 214 AD2d 559; see also Huggins v New York City Tr. Auth., 225 AD2d 732). Here, the defendants failed to show that a further physical examination of the plaintiff was required. While we strongly disapprove of the plaintiff's counsel instructing the plaintiff to refuse to respond to questions relating to her relevant past medical history, there was no indication by the defendants' examining physician that his prior examination was hindered, or that he required additional information.

Gladstein v Martorella, 2010 NY Slip Op 01732 (App. Div., 1st, 2010)

When parties set down their agreement in a clear, complete document, their writing should, as a rule, be enforced according to its terms. Evidence outside the four corners of the document as to what was really intended but unstated or misstated is generally inadmissible to add to or vary the writing. Extrinsic and parol evidence are not admissible to create an ambiguity in a written agreement which is complete, clear and unambiguous on its face (see W.W.W. Assoc. v Giancontieri, 77 NY2d 157, 162 [1990]).

The agreement herein is unambiguous on its face. Both sale and lease contracts may be utilized in meeting the 75% requirement. "The best evidence of what parties to a written agreement intend is what they say in their writing" (Greenfield v Philles Records, 98 NY2d 562, 569 [2002] [internal quotation marks and citation omitted]). If the parties intended to exclude lease contracts from consideration, they made a mistake in the agreement. "An omission or mistake in a contract does not constitute an ambiguity" (Reiss v Financial Performance Corp., 97 NY2d 195, 199 [2001] [internal quotation marks and citation omitted]).

Progressive Northeastern Ins. Co. v North State Autobahn, Inc., 2010 NY Slip Op 01779 (App. Div., 2nd, 2010)

The Supreme Court did not improvidently exercise its discretion in denying that branch of the defendants' motion which was, in the alternative, to direct that this action be tried jointly with an action entitled North State Autobahn v Progressive Insurance Group, pending in the Supreme Court, Westchester County, under Index No. 02761/07. Inasmuch as the two actions did not involve common questions of law or fact (see CPLR 602[a]), a joint trial was not warranted (see Beerman v Morhaim, 17 AD3d 302, 303).

At the close of the plaintiff's case, which arises out of the defendants' repair of a motor vehicle owned by the plaintiff's insured, the defendants moved for judgment as a matter of law on the ground that the plaintiff had failed to establish a prima facie case (see CPLR 4401). The Supreme Court granted the motion on a ground not argued by the defendants, namely, that the plaintiff's payment of the full amount of the final bill for the repair of the vehicle without asserting that the payment was, in some [*2]manner, "under protest," barred the plaintiff's claims under the doctrine of accord and satisfaction (see Merrill Lynch Realty/Carll Burr, Inc. v Skinner, 63 NY2d 590, 596; Uniform Commercial Code § 1-207). In granting the motion on that ground, the Supreme Court erred in two respects. First, accord and satisfaction is an affirmative defense which must be pleaded and proved (see CPLR 3018[b]; Conboy, McKay, Bachman & Kendall v Armstrong, 110 AD2d 1042; see also Arias-Paulino v Academy Bus Tours, Inc., 48 AD3d 350; Dec v Auburn Enlarged School Dist., 249 AD2d 907, 908). The defendants did not plead accord and satisfaction as an affirmative defense, and it was improper for the Supreme Court to raise it sua sponte (see Trustco Bank N.Y. v Cohn, 215 AD2d 840, 841; cf. Rienzi v Rienzi, 23 AD3d 450). Second, the doctrine of accord and satisfaction is not applicable because it contemplates full knowledge of the facts on the part of both parties who, in effect, enter into a new contract to expeditiously settle a contract dispute (see Horn Waterproofing Corp v Bushwick Iron & Steel Co., 66 NY2d 321, 325). In this action, inter alia, to recover damages for fraud, the gravamen of the plaintiff's claim is that it was without such knowledge because of the defendants' alleged misrepresentation of material facts. Thus, a new trial is warranted.

We note that, upon retrial, the plaintiff should not be limited to damages in the sum of $2,808.65, the amount of the allegedly fraudulent charges contained in the final bill of the defendant North State Autobahn, Inc., d/b/a North State Custom Auto, but rather to the amount sought in the complaint.

Another older one.

Simmons v New York City Health & Hosps.
Corp., 2010 NY Slip Op 01692 (App. Div., 1st, 2010)

The motion court, by declining to grant defendant's motion to dismiss the complaint and ordering discovery, limited to plaintiff's assertion of the insanity toll, necessarily rejected defendant's res judicata defense. Thus, the order at issue, at least to the extent that it denied defendant's motion to dismiss on grounds of res judicata is appealable insofar as it affects a substantial right (see Fellner v Morimoto, 52 AD3d 352, 353 [2008]; CPLR 5701[a][2][v]).

However, contrary to the lower court's implicit conclusion the instant action is in fact barred by res judicata. Plaintiff's prior action was against a doctor employed by defendant, arose from the same course of treatment alleged in the instant action, and was dismissed on statute of limitations grounds. While defendant was not a party to the prior action, as defendant doctor's employer, required to indemnify defendant doctor in the prior action, it was in privy with defendant doctor (Beuchel v Bain, 97 NY2d 295, 304-305 [2001], cert denied 535 US 1096 [2002]; Prospect Owners Corp. v Tudor Realty Servs., 260 AD3d 299 [1999]), the real party in interest in that action (Ebert v New York City Health and Hosp. Corp., 82 NY2d 863, 866-867 [1993]), and the abbreviated statute of limitations applicable to defendant was thus applied to him (see International Shared Servs. v County of Nassau, 222 AD2d 407, 408 [1995]; Urraro v Green, 106 AD2d 567 [1984]). Plaintiff cannot avoid res judicata by varying facts, changing his causes of action and omitting references to the previously named doctor (see Reilly v Reed, 45 NY2d 24, 28-30 [1978]; Marinelli v Assocs. v Helmsley Noyes Co., 265 AD2d 1 [2000]).

The bold, that I will eventually use, will be mine.

NYSBA, CPLR 3212 and CPLR 3116(a)

CPLR R. 3116 Signing
deposition; physical preparation; copies

(a)
Signing. The deposition shall be submitted to the witness for
examination and shall be read to or by him or her, and any changes in
form or substance which the witness desires to make shall be entered at
the end of the deposition with a statement of the reasons given by the
witness for making them. The deposition shall then be signed by the
witness before any officer authorized to administer an oath. If the
witness fails to sign and return the deposition within sixty days, it
may be used as fully as though signed. No changes to the transcript may
be made by the witness more than sixty days after submission to the
witness for examination.

David Horowitz has a great article in New York State Bar Association Journal about the use of unsigned deposition transcripts in summary judgment motions titled "Signature Required."  As we all know, summary judgment must be supported by proof in admissible form.  And generally, unsigned deposition transcripts are not proof in admissible form.  Why?  CPLR R. 3116(a), requires that the deposition transcript be signed by the witness.  If that isn't done, the transcript may be admissible provided that the transcript was actually provided to the witness for his or her signature within 60 days of receipt.  The rule is not without it's exceptions, however.  For example, "When a party moving for summary judgment utilizes an unexectuted transcript of its party witness, thereby 'adopting' the contents…and the transcript is then relied on by the party opposing the motion, the transcript may be considered as proof in opposition by the opposing party." (quote is from the article.  I have no idea how to cite to it).  Another example is when it is used as a party admission.  You'll have to read the article to get all the cites.  If not for the cites, you should read it, just because.  

Oh, ok, just one cite, Pina v. Flik Intern. Corp., 808 N.Y.S.2d 752 (App. Div., 2nd, 2007).  There the Appellate DIvision makes it pretty simple.   Either it's signed, or you show that you sent it to be signed. Otherwise, you're screwed:

The Supreme Court properly denied the defendants' motions for summary
judgment since they failed to submit sufficient evidence in admissible
form to establish their entitlement to judgment as a matter of law (see
Winegrad v New York Univ. Med. Ctr., 64 NY2d 851, 853 [1985]). The
defendants failed to show that the unsigned deposition transcripts of
various witnesses they submitted in support of their motions had
previously been forwarded to the relevant witnesses for their review
pursuant to CPLR 3116 (a). Hence, contrary to the defendants'
contention, they were not admissible (see Lalli v Abe, 234 AD2d
346 [1996]; Palumbo v Innovative Communications Concepts, 175
Misc 2d 156 [1997], affd 234 AD2d 346 [1998]; Connors, Practice
Commentaries, McKinney's Cons Laws of NY, Book 7B, CPLR C3116:1).

Yes, I know, there are exceptions, but generally, you will be screwed.

Compare Pina with St. Vincent’s Hosp. & Med. Ctr. v Allstate Ins. Co., 2010 NY Slip Op 00668 (App. Div., 2nd, 2010).  In that case the defendant offered several unsigned EUO transcripts as evidence in support of its motion for summary judgment.  Defendant offered them under the theory that (1) they weren't being offered for their truth and (2) they were admissions.  The Appellate Division found that defendant's cross motion should be have granted, reversing the lower court.  The Appellate Term, twice now, has held that assignors are not parties.  I read defendant's briefs, but don't quite understand just how defendant thought the transcripts were relevant if not offered for their truth.  JT appears equally confused.  And the Appellate Division's decision offers zero insight.  The whole thing is weird.

So, in conclusion, make sure to read the article.  It was the first thing I turned to when I opened the magazine.  I'm a nerd.  Fat too.  God help me.

[edit] Sorry, I forgot to add something.  In the very beginning of the article Mr. Horowitz briefly discusses the history of summary judgment, including the initial fight as to whether, and I'm paraphrasing here, it encroached on the right to trial by jury.  The issue of whether summary judgment is constitutional, it appears, is not a new argument.  If anyone is interested, there is a great Law Review article on that very topic.  I posted it back in September with links to the articles.    

SLAPP

Most people don't know or care about SLAPP. It's interesting stuff and there is a wealth of informationSlapity    about in on the internets.  Along with SLAPP, note that plaintiff, in opposing defendant's summary judgment motion, only attached an attorney affirmation.  No affidavit was attached.  And note the rare reference to 3212(h).

Novosiadlyi v James, 2010 NY Slip Op 00938 (App. Div., 2nd, 2010)

The plaintiffs commenced this action alleging, inter alia, that the
defendants defamed them during public hearings on their application for a
permit allowing them to use their house in Lindenhurst as an
owner-occupied two-family home. The defendant Joseph Ippolito moved for
summary judgment dismissing the complaint insofar as asserted against
him pursuant to CPLR 3212 and Civil Rights Law §§ 70-a and 76-a, and for
recovery on his counterclaim for an award of an attorney's fee,
contending that this action was an improper strategic lawsuit against
public participation (hereinafter SLAPP action) (see 600 W. 115th St.
Corp. v Von Gutfeld, 80 NY2d 130, 137 n 1, cert denied 508
US 910).

In the order granting Ippolito's motion, the Supreme Court
determined that he established his prima facie entitlement to the
protections of Civil Rights Law §§ 70-a and 76-a. Moreover, the court
rejected the plaintiffs' opposition, which consisted of only an
affirmation of counsel, as being without probative value and
insufficient to oppose the summary judgment motion. Consequently, the
Supreme Court granted Ippolito's motion for summary judgment dismissing
the complaint insofar as asserted against him and awarded him summary
judgment on his counterclaim for an award of an attorney's fee to the
extent of scheduling an inquest.

Thereafter, the plaintiffs, proceeding pro se, moved pursuant to
CPLR 2005 and 2221 for leave to renew their opposition to Ippolito's
motion. In an order dated July 3, 2008, the Supreme Court denied the
plaintiffs' motion for leave to renew, finding that no new facts were
offered and that the new arguments offered as new facts would not have
changed the prior result. The plaintiff Roman Novosiadlyi appeals from
that order. We affirm.
[*2]

A motion for leave to renew must
be (1) based upon new facts not offered on the prior motion that would
change the prior determination, and (2) set forth a reasonable
justification for the failure to present such facts on the prior motion (see
CPLR 2221[e][2], [3]; Caraballo v Kim, 63 AD3d 976, 978; Jackson
Hgts. Care Ctr., LLC v Bloch, 39 AD3d 477, 480). Here, the
plaintiffs failed to submit new facts sufficient to change the court's
prior determination granting Ippolito's summary judgment motion. Civil
Rights Law § 76-a was enacted to provide special protection for
defendants in actions arising from the exercise of their rights of
public petition and participation by deterring SLAPP actions (see 600
W. 115th St. Corp. v Von Gutfeld, 80 NY2d at 137 n 1; Singh v
Sukhram, 56 AD3d 187, 194). Where, as here, the defendant
established that the action involves the rights of public petition and
participation (see Civil Rights Law § 76-a[1][a]), "damages may
only be recovered if the plaintiff, in addition to all other necessary
elements, shall have established by clear and convincing evidence that
any communication which gives rise to the action was made with knowledge
of its falsity or with reckless disregard of whether it was false"
(Civil Rights Law § 76-a[2]; see T.S. Haulers v Kaplan, 295 AD2d
595, 598). In addition, summary judgment must be awarded to the
defendant unless the plaintiff demonstrates, in opposition, that the
action has "a substantial basis in fact and law or is supported by a
substantial argument for an extension, modification or reversal of
existing law" (CPLR 3212[h]). The plaintiffs' submissions in support of
their renewal motion failed to meet this burden or otherwise raise a
triable issue of fact as to whether Ippolito knew that his statements
were false or that he made them with reckless disregard of whether they
were true. Accordingly, the Supreme Court properly denied the
plaintiffs' motion for leave to renew (see T.S. Haulers v Kaplan,
295 AD2d at 598).

The bold is mine.

Informal Judicial Admissions and 3101(d)

Normally this would go on the evidence blog, but I rarely post over there and am considering just killing the damn thing, so I'm posting it here.  In fact, it's been sitting around since December, waiting to be posted.


Ocampo v Pagan, 68 AD3d 1077 (App. Div., 2nd, 2009)

The court improvidently exercised its discretion in precluding the
testimony of the
defendants' expert witness in the area of radiology. "CPLR 3101 (d) (1)
(i) does not require a
party to respond to a demand for expert witness information 'at any
specific time, nor does it
mandate that a party be precluded from proffering expert testimony
merely because of
noncompliance with the statute,' unless there is evidence of intentional
or willful failure to
disclose and a showing of prejudice by the opposing party" (Hernandez-Vega
v
Zwanger-Pesiri Radiology Group, 39 AD3d 710, 710-711 [2007], quoting
Aversa v
Taubes, 194 AD2d 580, 582 [1993]; see Rowan v Cross County Ski
& Skate, Inc.,
42 AD3d 563, 564 [2007]).

While a trial court "has the discretion to preclude expert
testimony for the failure to
reasonably comply with the statute" (Lucian v Schwartz, 55 AD3d
687, 688 [2008]),
there was no finding [*2]here of failure to
comply, reasonably or
otherwise, with the statute. This is not a situation in which the
defendants failed to demonstrate
good cause for failing to disclose expert information regarding expert
witnesses until the eve of
trial (cf. Martin v NYRAC, Inc., 258 AD2d 443 [1999]). Rather,
the defendants
produced an affidavit of service showing that the required notice
pursuant to CPLR 3101 (d) was
timely served (see CPLR 2103 [b] [2]). The court here merely
found that the plaintiff's
explanation raised a question of fact as to whether the plaintiff had
actually received the notice,
specifically declining to place blame on either party for the "totality
of . . .
circumstances" underlying the claim of the plaintiff's counsel that he
was unaware of the
existence of the first expert witness disclosure until right before the
start of the trial. Where there
is no evidence of intentional or willful failure to disclose, "any
potential prejudice to the
plaintiffs [may be] eliminated by an adjournment of the trial" (Rowan
v Cross County Ski &
Skate, Inc., 42 AD3d at 564; see Shopsin v Siben & Siben, 289
AD2d 220, 221
[2001]). By precluding the expert's testimony to avoid prejudicing the
plaintiff, instead of simply
adjourning the trial to avoid prejudice to either party, the court, in
effect, penalized the
defendants, although there was no evidence of wrongdoing on their part (see
Rowan v Cross
County Ski & Skate, Inc., 42 AD3d at 564; Shopsin v Siben
& Siben, 289 AD2d at
221). Contrary to the plaintiff's contention, the error was not
harmless.

Moreover, the Supreme Court improvidently exercised its
discretion in limiting the scope of
the defendants' cross-examination of the plaintiff by precluding the use
of pleadings, bills of
particulars, and sworn testimony given at a hearing pursuant to General
Municipal Law §
50-h in subsequent lawsuits, and in precluding the introduction such
documents into evidence.

Statements contained in a verified complaint, or " 'made by a
party as a witness, or contained
in a deposition, a bill of particulars, or an affidavit' " constitute
informal judicial admissions
(Matter of Union Indem. Ins. Co. of N.Y., 89 NY2d 94, 103 [1996],
quoting Prince,
Richardson on Evidence § 8-219, at 529 [Farrell 11th ed]; see Gomez v
City of New
York, 215 AD2d 353, 354 [1995]). As such, "they are generally
admissible pursuant to an
exception to the hearsay rule" (Payne v New Hyde Park Dodge, 163
AD2d 285, 286
[1990]). While not conclusive, they are "evidence of the fact or facts
admitted" (Prince,
Richardson on Evidence § 8-219, at 530 [Farrell 11th ed]; see Matter
of Union Indem.
Ins. Co. of N.Y., 89 NY2d at 103; Gomez v City of New York, 215
AD2d at 354;
Payne v New Hyde Park Dodge, 163 AD2d at 286). Where statements
in the pleadings
or the bill of particulars, or in depositions or hearings from other
judicial proceedings are
inconsistent with the trial testimony of a witness, they are also
admissible to impeach the
credibility of that witness (see Somir v Weiss, 271 AD2d 433
[2000]). Here,
cross-examination testimony of the plaintiff regarding allegations in
her pleadings and bill of
particulars from a subsequent action arising out of a trip and fall, and
parts of her testimony,
given at a hearing pursuant to General Municipal Law § 50-h in
connection with a
subsequent medical malpractice action, were admissible on the issue of
the truth of the facts
stated, both as prior inconsistent statements impeaching the plaintiff's
credibility, and as informal
judicial admissions. While prior accidents or lawsuits may not be
explored where the purpose is
to "induce the inference of negligence or demonstrate that the plaintiff
is litigious and therefore
unworthy of belief" (Molinari v Conforti & Eisele, 54 AD2d
1113, 1114 [1976]), "it is
open to one charged with having caused an injury to inquire into whether
the claimant had
sustained, or had claimed to have sustained, the same injury in
circumstances unrelated to those
at bar" (Bowers v Johnson, 26 AD2d 552 [1966]).

The trial court's conduct, including, inter alia, its excessive
intervention into the trial
proceedings, warrants remittal to the Supreme Court for a new trial
before a different Justice
(see Pickering v Lehrer, McGovern, Bovis, Inc., 25 AD3d 677, 679
[2006]; see also
Schaffer v Kurpis, 177 AD2d 379 [1991]; Testa v Federated Dept.
Stores, Abraham &
Straus Div., 118 AD2d 696, 697 [1986]).

The bold and underscore are mine.

High-Low

Vargas v Marquis, 65 AD3d 1332 (App. Div., 2nd, 2009)

In this action, the plaintiff successfully moved for summary judgment
on the issue of
liability in August 2006. Prior to submission of the damages issue to a
jury, the parties entered
into a "high-low" stipulation on the record, the parameters of which
were $275,000 and $25,000.
The jury awarded the plaintiff damages in the sum of $135,000, which was
within the
parameters. Thereafter, the plaintiff presented a judgment to the Clerk
of the Court in the
principal sum of the verdict, plus pre-verdict interest in the sum of
$28,895.72, and costs and
disbursements in the sum of $2,521.57. The total sum of the judgment was
$166,417.29. The
defendants sent a letter to the Clerk opposing entry of the proposed
judgment wherein they
argued, inter alia, in effect, that pursuant to the terms of the
parties' high-low stipulation, the
plaintiff waived a judgment and was obligated to provide a stipulation
of discontinuance and
general release. The Clerk entered the judgment submitted by the
plaintiff. The defendants then
moved to vacate the judgment, essentially repeating the arguments they
had made before the
Clerk. The plaintiff opposed the motion, and the Supreme Court denied
it. We reverse.

As we recently observed in Cunha v Shapiro (42 AD3d 95
[2007]), "[p]arties
entering into high-low agreements are free to craft the terms of their
agreements on the record in
any manner that is mutually acceptable to them" (id. at 104). In
this case, the stipulation
read into the record by defense counsel, to which the plaintiff's
counsel "agreed," was as follows:
"At the conclusion of the case, regardless of what the verdict is,
plaintiff's counsel will give a
stipulation of discontinuance and general release. If the number were
zero, we'll still pay you 25
thousand dollars pursuant to that agreement. If the number is over 275 [*2]thousand, well, the release would be for 275
thousand dollars. And
obviously, if the number is somewhere in between, it will be for
whatever that number was."

Under the particular circumstances of this case, we agree with
the defendants that pursuant
to the terms of the high-low stipulation at issue, the plaintiff's
counsel was obligated to furnish a
stipulation of discontinuance and general release—not to submit a
judgment
containing a substantial amount of interest and costs—"regardless of
what the verdict is"
and for "whatever [the] number was." Since there was no showing that the
high-low stipulation
was the product of fraud, duress, overreaching, or unconscionability,
its terms must stand
(see Shuler v Dupree, 14 AD3d 548, 548-549 [2005]).

The bold is mine.

Fun with 5015

CPLR R. 5015 Relief from judgment or order

HSBC Bank USA Natl. Assn. v Nuteh 72 Realty Corp., 2010 NY Slip Op 01617 (App. Div., 2nd, 2010)

"A defendant seeking to vacate an order entered upon his or her default in opposing a motion must demonstrate both a reasonable excuse for the default and a meritorious defense to the motion and the action" (Newell v Hirsch, 65 AD3d 1108, 1109; see Diamond Truck Leasing Corp. v Cross Country Ins. Brokerage, Inc., 62 AD3d 745; Simpson v Tommy Hilfiger U.S.A., Inc., 48 AD3d 389; Matter of Gambardella v Ortov Light., 278 AD2d 494, 495; Neuman v Greenblatt, 260 AD2d 616, 617). Here, in opposition to the plaintiff's motion for leave to enter a default judgment against the defendants Nuteh 72 Realty Corp. and Nathan Friedman (hereinafter the defendants), and in support of their cross motion, inter alia, to vacate their default in opposing the plaintiff's motion to strike their answer pursuant to CPLR 3126, the defendants succeeded in demonstrating a reasonable excuse for their default (see Evolution Impressions, Inc. v Lewandowski, 59 AD3d 1039, 1040).

However, the defendants failed to demonstrate, through evidence in admissible form, the existence of a meritorious defense, specifically, under the circumstances here, whether they were good faith purchasers of the subject real property for valuable consideration. Friedman's affirmation states only that "NUTEH is a good faith' purchaser for value of the Premises." This conclusory, [*2]self-serving, and bare legal conclusion was insufficient to establish the existence of a meritorious defense (see Diamond Truck Leasing Corp. v Cross Country Ins. Brokerage, Inc., 62 AD3d at 746; Matter of Atkin v Atkin, 55 AD3d 905; cf. Atwater v Mace, 39 AD3d 573, 575). Additionally, in the absence of any foundation, the defendants' submission of a one-page printout of a New York City Department of Finance document entitled "A[utomated] C[ity] R[egister] I[nformation] S[ystem] Search Results By Parcel Identifier" did not constitute evidence in admissible form sufficient to establish the existence of a meritorious defense (see generally Knupfer v Hertz Corp., 35 AD3d 1237, 1238; Triangle Transp., Inc. v Markel Ins. Co., 18 AD3d 229; Matter of Haber v Haber, 306 AD2d 282, 283; Merrill/New York Co. v Celerity Sys., 300 AD2d 206, 207). Accordingly, in the absence of any admissible evidence sufficient to demonstrate the existence of a meritorious defense, the Supreme Court should have granted the plaintiff's motion for leave to enter a default judgment, and denied the defendants' cross motion, inter alia, to vacate their default in opposing the plaintiff's motion to strike their answer.


Gross v Kail, 2010 NY Slip Op 01616 (App. Div., 2nd, 2010)

The Supreme Court erred in denying the plaintiffs' motion for leave to enter judgment against the defendants upon their default in appearing or answering and, in effect, granting the defendants' application, inter alia, to deem the proposed answer to have been served. In support of their motion, the plaintiffs submitted their process server's affidavits of service of the summonses and the complaints, a factually-detailed complaint verified by the plaintiff Gerald P. Gross, and an affirmation from attorney Mitchell J. Rich regarding the defendants' default in appearing and answering (see CPLR 3215[f]).

In opposition to the plaintiffs' motion and in support of their application, inter alia, to deem the proposed answer to have been served, the defendants were required to demonstrate a reasonable excuse for the default and the existence of a meritorious defense (see CPLR 5015[a][1]; Miller v Ateres Shlomo, LLC, 49 AD3d 612, 613; Lipp v Port Auth. of N.Y. & N.J., 34 AD3d 649; [*2]Juseinoski v Board of Educ. of City of N.Y., 15 AD3d 353, 356; Curran v Graf, 13 AD3d 409; Ennis v Lema, 305 AD2d 632, 633). The defendants failed to provide any excuse for their default and failed to demonstrate that they had a meritorious defense to the action. The defendants submitted a proposed answer verified only by their attorney, who had no personal knowledge of the facts (see Baldwin v Mateogarcia, 57 AD3d 594, 595; Bekker v Fleischman, 35 AD3d 334, 335; Pampalone v Giant Bldg. Maintenance, Inc., 17 AD3d 556, 557; Juseinoski v Board of Educ. of City of N.Y., 15 AD3d at 356). Accordingly, the plaintiffs' motion should have been granted and the defendants' application should have been denied.

393 Lefferts Partners, LLC v New York Ave. at Lefferts, LLC, 68 AD3d 976 (App. Div., 2nd, 2009)

A defendant seeking to vacate a default in answering must demonstrate a reasonable excuse for the default and the existence of a meritorious defense (see CPLR 5015 [a] [1]; Eugene Di Lorenzo, Inc. v A.C. Dutton Lbr. Co., 67 NY2d 138, 141 [1986]; Gray v B. R. Trucking Co., 59 NY2d 649, 650 [1983]; Harris v City of New York, 30 AD3d 461, 463-464 [2006]; Orangetown Policemen&
#39;s Benevolent Assn. v Town of Orangetown, 18 AD3d 841 [2005]). The appellant submitted an affidavit of service that stated that it was served on August 10, 2007, pursuant to Limited Liability Company Law § 303, by service upon the Secretary of State. The appellant also submitted a certificate of service and return receipt showing that the Secretary of State delivered the summons and complaint to the appellant's designated address by certified mail, return receipt requested, but the return receipt was not dated and was signed by a person who was not employed by the appellant. Joseph Artusa, one of the appellant's managing members, stated in an affidavit that he was out of the office "on many days" in August and September of 2007 and did not see the summons and complaint on his desk until late September, when the time to answer it had expired. This statement does not provide a reasonable excuse for the appellant's default. Moreover, the Supreme Court providently exercised its discretion in determining that the appellant was not entitled to relief pursuant to CPLR 317, since it failed to demonstrate that it did not receive actual notice of the summons and complaint in time to defend the action (see CPLR 317; Taieb v Hilton Hotels Corp., 60 NY2d 725 [1983]; Franklin v 172 Aububon Corp., 32 AD3d 454 [2006]; Brockington v Brookfield Dev. Corp., 308 AD2d 498 [2003]). In addition, the appellant failed to demonstrate a meritorious defense to the action.

The bold is mine

Lawyer for Non-Party Witnesses? No. (CPLR R. 3113)

CPLR R. 3113. Conduct of the examination

This decision was first posted over at No-Fault Defender, but received more thorough treatment over at the New York Personal Injury Blog.  Head over to both.  Make sure to read the comments at NYPIB.

Thompson v Mather, 2010 NY Slip Op 01239 (App. Div., 4th, 2010)

We agree with plaintiff that counsel for a nonparty witness does not have a right to object during or otherwise to participate in a pre-trial deposition. CPLR 3113 (c) provides that the examination and cross-examination of deposition witnesses "shall proceed as permitted in the trial of actions in open court." Although counsel for the physicians correctly conceded at oral argument of plaintiff's motion in Supreme Court that she had no right to object during or to participate in the trial of this action, she nevertheless asserted that she was entitled to object during nonparty depositions and videotaped deposition questioning. We cannot agree that there is such a distinction, based on the express language of CPLR 3113 (c). Indeed, we discern no distinction between trial testimony and pre-trial videotaped deposition testimony presented at trial. We note in addition that 22 NYCRR 202.15, which concerns videotaped recordings of civil depositions, refers only to objections by the parties during the course of the deposition in the subdivision entitled "Filing and objections" (see 22 NYCRR 202.15 [g] [1], [2]). We thus conclude that plaintiff is entitled to take the videotaped depositions of the physicians and that counsel for those physicians is precluded from objecting during or otherwise participating in the videotaped depositions.

Lastly, we note that the practice of conditioning the videotaping of depositions of nonparty witnesses to be presented at trial upon the provision of general releases is repugnant to the fundamental obligation of every citizen to participate in our civil trial courts and to provide truthful trial testimony when called to the witness stand. Contrary to nonparty respondents' contention, the fact that the statute of limitations has not expired with respect to a nonparty treating physician witness for the care that he or she provided to a plaintiff provides no basis for such a condition.
The bold is mine.

While you are here, here are some blogs that I like.  You might like them too, unless you are a commie.

Timely, but Improper: CPLR § 3012(d)

CPLR § 3012 Service of pleadings and demand for complaint
(d) Extension of time to appear or plead

Gazes v Bennett, 2010 NY Slip Op 01575 (App. Div., 1st, 2010)

Plaintiff brought this malpractice action against defendant in connection with his representation of the debtor and trustee in a wrongful termination action (see Horan v New York Tel. Co., 309 AD2d 642 [2003]). Plaintiff's time to commence this action and serve a summons and complaint expired on September 13, 2007, six months after the dismissal of an earlier action arising out of the same transactions (see CPLR 205[a]). Commencement was timely, but attempted service on September 12, 2007 was defective because the mailing component of service was sent to defendant's place of work in an envelope indicating it was from a law firm, an error attributable to the process server. The denial of plaintiff's request that defendant be compelled to accept late service of the pleadings was contained in a final order, and is thus appealable as of right (see CPLR 5701[a][2]).

A court may "compel the acceptance of a pleading untimely served, upon such terms as may be just and upon a showing of reasonable excuse for delay" (CPLR 3012[d]). Plaintiff submitted a reasonable excuse for delay in proper service — namely, the process server's error — which was attributable to counsel and constituted excusable law office failure (see CPLR 2005).

Plaintiff set forth a meritorious action, and the delay was excusable in light of its brevity and the absence of any pattern of default; defendant should have been compelled to accept late service pursuant to CPLR 3012(d) (see Nason v Fisher, 309 AD2d 526 [2003]). This is especially so in the absence of any prejudice to defendant, who was actually and timely — although not properly — served with the complaint (see Lisojo v Phillip, 188 AD2d 369 [1992]; see also CPLR 2001, 2004), and in the absence of any indication that plaintiff intended to abandon his claim (see Nolan v Lechner, 60 AD3d 473 [2009]).

The bold is mine.