On Summary Judgment [CPLR 3212]

Nill v Schneider, 173 AD3d 753 [2d Dept. 2019]

“It is a defendant’s burden, when it is the party moving for summary judgment, to demonstrate affirmatively the merits of a defense, which cannot be sustained by pointing out gaps in the plaintiff’s proof” (Quantum Corporate Funding, Ltd. v Ellis, 126 AD3d 866, 871 [2015]).

Rivera v City of New York, 173 AD3d 790 [2d Dept. 2019]

We also agree with the Supreme Court’s determination denying that branch of Carter’s motion which was for summary judgment dismissing all cross claims insofar as asserted against it. The papers submitted in support of the motion failed to include copies of the relevant pleadings as required by CPLR 3212 (b), thereby precluding review of the purported cross claims (see Mieles v Tarar, 100 AD3d 719, 720 [2012]; Matsyuk v Konkalipos, 35 AD3d 675, 676 [2006]; Wider v Heller, 24 AD3d 433, 434 [2005]).

Bargil Assoc., LLC v Crites, 173 AD3d 958 [2d Dept. 2019]

Motions for summary judgment “shall be made no later than one hundred twenty days after the filing of the note of issue” (CPLR 3212 [a]) unless the Supreme Court has set a different deadline. A party may not file a late summary judgment motion without leave of the court “on good cause shown” (CPLR 3212 [a]), which requires the movant to articulate a “satisfactory explanation for the untimeliness” of the motion (Brill v City of New York, 2 NY3d 648, 652 [2004]; see Milano v George, 17 AD3d 644, 645 [2005]). “In the absence of a showing of good cause for the delay in filing a motion for summary judgment, the court has no discretion to entertain even a meritorious, nonprejudicial motion for summary judgment” (Bivona v Bob’s Discount Furniture of NY, LLC, 90 AD3d 796, 796 [2011] [internal quotation marks omitted]; see Greenpoint Props., Inc. v Carter, 82 AD3d 1157, 1158 [2011]).

Here, the plaintiff’s motion was made almost five years after the 120-day deadline expired. The plaintiff failed to demonstrate, in its moving papers, good cause for not filing the motion in a timely manner, and only attempted to do so, improperly for the first time, in its reply papers (see Nationstar Mtge., LLC v Weisblum, 143 AD3d 866, 869 [2016]).  Accordingly, we agree with the Supreme Court’s determination denying, as untimely, the plaintiff’s motion for summary judgment.

Mazzurco v Gordon, 173 AD3d 1003 [2d Dept. 2019]

Here, the defendants failed to meet their initial burden on their motion. The defendants sought to establish their prima facie entitlement to judgment as a matter of law by relying on the Supreme Court’s preclusion order, but they failed to demonstrate, prima facie, that the plaintiff could not meet his burden of proof at trial through evidence other than the precluded fact witnesses. To the contrary, the defendants’ own motion papers demonstrated the availability of other proof on which the plaintiff could rely at trial. Accordingly, we agree with the court’s determination to deny the defendants’ motion for summary judgment dismissing the complaint, regardless of the sufficiency of the opposition papers (see Winegrad v New York Univ. Med. Ctr., 64 NY2d 851, 853 [1985]).

Saunders v J.P.Z. Realty, LLC, 2019 NY Slip Op 06573 [1st Dept. 2019]

 In this regard, CPLR 3212(b) provides that a summary judgment motion “shall be supported by affidavit” of a person “having knowledge of the facts” as well as other admissible evidence (see GTF Mktg. v Colonial Aluminum Sales , 66 NY2d 965, 967 [1985]). A conclusory affidavit or an affidavit by an individual without personal knowledge of the facts does not establish the proponent’s prima facie burden (see e.g. Vermette v Kenworth Truck Co. , 68 NY2d 714 [1986]).

Painful IME

Goldson v Mann, 173 AD3d 410 [1st Dept. 2019]

Defendant failed to meet his prima facie burden of demonstrating that he did not depart from good and accepted medical practice in examining plaintiff during an independent medical examination (IME), or that any such departure was not a proximate cause of plaintiff’s injury to her left shoulder (see Scalisi v Oberlander, 96 AD3d 106, 120 [1st Dept 2012]). Defendant’s expert affirmation, which relied on defendant’s testimony regarding his custom and practice of examining patients during his IMEs, was insufficient. Defendant’s testimony did not establish a deliberate and repetitive practice sufficient to show evidence of his behavior during plaintiff’s examination, as he testified that his examination varied depending on the examinee (see Rivera v Anilesh, 8 NY3d 627, 634 [2007]). Therefore, the expert’s reliance on such testimony to conclude that defendant had not deviated from the accepted standard of care rendered his affirmation insufficient (compare id. at 635-636).

Defendant’s expert also failed to establish that defendant did not cause or exacerbate plaintiff’s left shoulder condition. He failed to address differences in plaintiff’s MRI findings or statements made by plaintiff’s treating physician, which suggested that plaintiff had suffered a new injury after the IME. The expert also ignored plaintiff’s testimony that defendant had forcefully pushed her left arm over her head and caused a new injury (see Wasserman v Carella, 307 AD2d 225, 226 [1st Dept 2003]), and provided no support for his statement that plaintiff’s post-IME injuries were degenerative in nature, and not traumatically induced (see Frias v James, 69 AD3d 466, 467 [1st Dept 2010]).

Argued by one judge. Decided by another.

Marti v Rana, 173 AD3d 576 [1st Dept. 2019]

The fact that oral argument was held before a different Justice than the Justice who ultimately decided the motion for summary judgment is not a proper basis for vacating the order granting summary judgment. Although Judiciary Law § 21 provides that a Supreme Court Justice “shall not decide or take part in the decision of a question, which was argued orally in the court, when he was not present and sitting therein as a judge,” reversal is not warranted on this ground, because the Justice who granted the motion decided a purely legal question (People v Hampton, 21 NY3d 277, 286 [2013]).

Plaintiffs argue that they were prejudiced because certain statements made by the court at oral argument led them to believe that a motion for leave to amend was not necessary. This argument is unavailing. To the extent counsel relied on his impressions of the court’s leanings, which were never incorporated into a binding order, he did so at his own peril.

Pro se affidavit needs to be notarized

Pollack v Ovadia, 173 AD3d 464 [1st Dept. 2019]

Although pro se defendant tenant could submit an affirmation rather than an affidavit for religious reasons, the document was still required to be notarized, and therefore the motion court was constrained to reject his unnotarized affirmation (see Slavenburg Corp. v Opus Apparel, 53 NY2d 799, 801 n [1981]; see also John Harris P.C. v Krauss, 87 AD3d 469 [1st Dept 2011]).

Accordingly, the motion was not supported by affidavit or affirmation of facts, and was properly denied (CPLR 3212 [b])

3103: Protective orders

Pascual v Rustic Woods Homeowners Assn., Inc., 173 AD3d 757 [2d Dept. 2019]

CPLR 3101 (a) requires, in pertinent part, “full disclosure of all matter material and necessary in the prosecution or defense of an action.” However, the principle of “full disclosure” does not give a party the right to uncontrolled and unfettered disclosure (McAlwee v Westchester Health Assoc., PLLC, 163 AD3d 547, 548 [2018] [internal quotation marks omitted]; Ramirez v New York City Tr. Auth., 132 AD3d 653, 654 [2015]; Gilman & Ciocia, Inc. v Walsh, 45 AD3d 531, 531 [2007]).

Discovery demands are palpably improper where they seek irrelevant information, are overbroad and burdensome, or fail to specify with reasonable particularity many of the documents requested (see Jordan v City of New York, 137 AD3d 1084, 1084-1085 [2016]; H.R. Prince, Inc. v Elite Envtl. Sys., Inc., 107 AD3d 850, 850 [2013]; Matter of New York Cent. Mut. Fire Ins. Co. v Librizzi, 106 AD3d 921, 921 [2013]; Montalvo v CVS Pharm., Inc., 102 AD3d 842, 843 [2013]; Ural v Encompass Ins. Co. of Am., 97 AD3d 562, 566 [2012]). Where the discovery demands are overbroad, the appropriate remedy is to vacate the entire demand rather than to prune it (see Stepping Stones Assoc., L.P. v Scialdone, 148 AD3d 855, 856 [2017]; Berkowitz v 29 Woodmere Blvd. Owners’, Inc., 135 AD3d 798, 799 [2016]; Scorzari v Pezza, 111 AD3d 916, 916 [2013]; Bell v Cobble Hill Health Ctr., Inc., 22 AD3d 620, 621 [2005]).

Here, the discovery demands at issue were palpably improper in that they sought irrelevant information, or were overbroad and burdensome (see JPMorgan Chase Bank, N.A. v Levenson, 149 AD3d 1053, 1055 [2017]; Diaz v City of New York, 117 AD3d 777, 778 [2014]; Kamanou-Goune v Swiss Intl. Airlines, 100 AD3d 968, 969 [2012]).

MPEG LA, L.L.C. v Toshiba Am. Info. Sys., Inc., 173 AD3d 611 [1st Dept. 2019]

The motion court providently exercised its discretion by denying the motion to compel the production of documents that have no bearing on the issues in this breach of contract action (see Andon v 302-304 Mott St. Assoc., 94 NY2d 740, 745 [2000]). Moreover, the court providently determined that some of the document requests were vague and overbroad (see e.g. Lerner v 300 W. 17th St. Hous. Dev. Fund Corp., 232 AD2d 249 [1st Dept 1996])

Kim & Bae, P.C. v Sunki Lee, 173 AD3d 990 [2d Dept. 2019]

Contrary to the plaintiffs’ contention, the Supreme Court did not improvidently exercise its discretion in denying their motion to extend the time to complete discovery and to file the note of issue. Pursuant to CPLR 2004, “[e]xcept where otherwise expressly prescribed by law, the court may extend the time fixed by any statute, rule or order for doing any act, upon such terms as may be just and upon good cause shown, whether the application for extension is made before or after the expiration of the time fixed.” The grant of such an extension of time is addressed to the sound discretion of the trial court (see Tewari v Tsoutsouras, 75 NY2d 1, 11 [1989]; Oliver v Town of Hempstead, 68 AD3d 1079, 1080 [2009]; Carota v Massapequa Union Free School Dist., 272 AD2d 428, 428 [2000]). In exercising its discretion, a court may consider such factors as the length of the delay, the reason or excuse for the delay, and any prejudice to the party opposing the motion (see Tewari v Tsoutsouras, 75 NY2d at 11-12; U.S. Bank N.A. v Adler, 148 AD3d 858 [2017]; Siracusa v Fitterman, 110 AD3d 1055, 1056 [2013]).

Here, the record supports the Supreme Court’s determination to deny the plaintiffs’ request for an extension of time. A motion for a protective order only stays disclosure of the particular matter in dispute, not all discovery (see CPLR 3103 [b]; Vandashield Ltd v Isaacson, 146 AD3d 552, 556 [2017]). Thus, by filing the motion for a protective order as to certain information, the plaintiffs were not relieved of the obligation to otherwise comply with the court’s August 21, 2015, order.

However, there was no record basis for the Supreme Court to direct that the plaintiffs are precluded from offering any evidence at trial. The order dated August 21, 2015, contained a directive conditionally precluding any party from testifying at trial if that party failed to appear for a deposition as set forth in that order. As a result of the plaintiffs’ respective failures to comply with the conditional order of preclusion, that conditional order became absolute upon the plaintiffs’ noncompliance with its terms, precluding the plaintiffs from testifying at trial (see Lee v Barnett, 134 AD3d 908, 909-910 [2015]; Julien-Thomas v Platt, 133 AD3d 824, 825 [2015]; Archer Capital Fund, L.P. v GEL, LLC, 95 AD3d 800, 801 [2012]). Although the plaintiffs are, by virtue of the August 21, 2015, order, precluded from testifying at trial, that order, by its terms, does not prevent the plaintiffs from providing other evidence. No other ground for the court’s determination to prevent the plaintiffs from providing any evidence at trial appears in the record (cf. CPLR 3126). Accordingly, we modify the order appealed from by deleting so much of the order entered April 21, 2016, as directed that the plaintiffs are precluded from offering any evidence at trial.

Pursuant to CPLR 3103 (a), a court may issue a protective order denying, limiting, conditioning, or regulating the use of any disclosure device, in order “to prevent unreasonable annoyance, expense, embarrassment, disadvantage, or other prejudice to any person or the courts.” The supervision of disclosure and the setting of reasonable terms and conditions rests within the sound discretion of the trial court and, absent an improvident exercise of discretion, its determination will not be disturbed (see Noy v Noy, 160 AD3d 887 [2018]; AAA Vascular Care, PLLC v Integrated Healthcare Mgt., LLC, 99 AD3d 642 [2012]; Spodek v Neiss, 70 AD3d 810 [2010]).

Here, the affidavit of the plaintiff Bong June Kim submitted in support of that branch of the plaintiffs’ motion which was for a protective order contained only conclusory assertions that confidentiality protection was necessary (see JPMorgan Chase Funding Inc. v Cohan, 134 AD3d 455 [2015]; Linderman v Pennsylvania Bldg. Co., 289 AD2d 77, 78 [2001]). Additionally, the plaintiffs failed to demonstrate unreasonable annoyance, embarrassment, disadvantage, or prejudice to warrant the issuance of a protective order (see CPLR 3103 [a]; Noy v Noy, 160 AD3d at 887-888). Accordingly, we agree with the Supreme Court’s determination in the order dated May 17, 2016, denying that branch of the plaintiffs’ motion which was for a protective order.

Discovery mid-trial (CPLR 3102(d), law of the case, and willful refusal

Matter of Michael R. v Amanda R., 2019 NY Slip Op 06454 [2d Dept. 2019]

A party may seek additional disclosure after trial commences only by permission of the trial court on notice (CPLR 3102[d]). Here, the father never sought permission for posttrial discovery. Nor do the father’s motion papers demonstrate any reason why he should have been permitted to pursue additional discovery more than a year after trial commenced. In view of this, and the fact that the mother faced contempt penalties if she were unable to present evidence about her ability to pay, the Support Magistrate improvidently exercised his discretion in “precluding” the mother from presenting evidence and testimony that he had already admitted into evidence at trial more than a year previously.

***

Third, contrary to the Family Court’s conclusion that the mother was also barred from objecting to the amount of arrears by the doctrine of law of the case, that doctrine is only applicable to “legal determinations that were necessarily resolved on the merits in a prior decision” (J.P. Morgan Sec., Inc. v Vigilant Ins. Co., 166 AD3d 1, 8 [1st Dept 2018] [emphasis added] [internal quotation marks omitted]). Since the mother’s earlier-filed objections were denied on procedural grounds, the application of the doctrine of the law of the case did not apply under the circumstances here.

Rosenberg & Estis, P.C. v Bergos, 18 AD3d 218 [1st Dept. 2005]

The record in this attorney fee dispute discloses that defendants willfully refused or simply failed to avail themselves of the opportunity to take plaintiff’s deposition prior to the deadline set forth in the preliminary conference stipulation, and willfully refused to obtain copies of documents that defense counsel had already inspected and tagged for copying. Under these circumstances, defendants’ motion to vacate the note of issue was properly denied since the certificate of readiness correctly represented that defendants had waived any right they had to additional discovery (cf. Munoz v 147 Corp., 309 AD2d 647, 648 [2003]; Ortiz v Arias, 285 AD2d 390 [2001]).

 

“Manifest disregard of the law”

Matter of Reljic v Tullett Prebon Fin. Servs., LLC, 2019 NY Slip Op 01182 [1st Dept. 2019]

In holding petitioners jointly and severally liable for compensatory damages, plus attorneys’ fees and costs, the arbitrators did not act in manifest disregard of the law (see Matter of Brown & Williamson Tobacco Corp. v Chesley, 7 AD3d 368, 372 [1st Dept 2004]; Duferco Intl. Steel Trading v T. Klaveness Shipping A/S, 333 F3d 383, 385 [2d Cir 2003] [“to vacate an arbitral award on the grounds of manifest disregard of the law … we must be persuaded that the arbitrators understood but chose to disregard a clearly defined law or legal principle”]).

Discovery

O’Halloran v Metropolitan Transp. Auth., 2019 NY Slip Op 01318 [1st Dept. 2019]

The court providently exercised its discretion in granting in part plaintiff’s motion to compel discovery and ordering defendants to run searches of electronic mailboxes of defendants’ employees and to produce those documents responsive to plaintiffs’ requests (CPLR 3101[a]; 148 Magnolia, LLC v Merrimack Mut. Fire Ins. Co., 62 AD3d 486, 487 [1st Dept 2009]; see also Andon v 302-304 Mott St. Assoc., 94 NY2d 740, 745 [2000]; GoSMILE, Inc. v Levine, 112 AD3d 469 [1st Dept 2013]). The record demonstrates that plaintiff’s requests seek material and necessary information, and that her search terms, all of which were to be combined with her name or nickname or the name or nickname of a coworker she alleges was discriminated or retaliated against on similar grounds, would result in the disclosure of relevant evidence, and are reasonably calculated to lead to the discovery of relevant information.

Plaintiff’s second Supplemental Request for Production of Documents, dated November 30, 2017, seeking all complaints, discrimination-related or not, involving defendant George Menduina’s conduct from 2010 to present, sought information material and necessary to this particular lawsuit because such information was relevant not only to whether Menduina, plaintiff’s supervisor, discriminated against plaintiff, but also to whether Menduina was more qualified than plaintiff to hold the very position that plaintiff alleges she was denied for discriminatory reasons.

Fowler v Buffa, 2019 NY Slip Op 01306 [1st Dept. 2019]

The trial court did not err in precluding a disability insurance form alleged to contain a statement against interest from defendant Anurag Shrivastava, M.D. The imposition of sanctions for discovery misfeasance is a matter better left to the sound discretion of the trial court (see Gomez v New York City Hous. Auth., 217 AD2d 110, 114 [1st Dept 1995]). CPLR 3101 provides that there shall be full disclosure of all matter material and necessary in the prosecution or defense of an action, including a party’s own statements (see also Sands v News Am. Publ., 161 AD2d 30, 42 [1st Dept 1990]). Plaintiff’s disclosure of the document less than two days prior to trial was an unfair surprise for which no reasonable excuse was proffered (see Curbean v Kibel, 12 AD3d 206, 207 [1st Dept 2004]; Ward v Mehar, 264 AD2d 515, 516 [2d Dept 1999]).

credibility determined as a matter law

Carthen v Sherman, 2019 NY Slip Op 00954 [1st Dept. 2019]

Although we agree with the dissent that as a general premise “the contradictions in the testimony of the respective parties raise issues of credibility for the trier of fact to resolve,” there are rare instances where credibility is properly determined as a matter of law (see e.g. Finley v Erie & Niagara Ins Assn., 162 AD3d at 1654-1646; Loughin v City of New York, 186 AD2d 176, 177 [2d Dept 1992]). This Court is not “required to shut its eyes to the patent falsity of a [claim]” (MRI Broadway Rental v United States Min. Prods. Co., 242 AD2d 440, 443 [1st Dept 1997], affd 92 NY2d 421 [1998]).

Subpoenas — abuse of Discretion not to adjourn for appearance

Matter of Global Liberty Ins. Co. v Perez, 2019 NY Slip Op 00548 [1st Dept. 2019]

“It is an abuse of discretion to deny a continuance where the application complies with every requirement of the law and is not made merely for delay, where the evidence is material and where the need for a continuance does not result from the failure to exercise due diligence” (Balogh v H.R.B. Caterers, 88 AD2d 136, 141 [2d Dept 1982]). Here, there is no evidence that petitioner Global Liberty was dilatory in issuing subpoenas to the officer who responded to the scene or to respondent Nestor Ruben Perez, neither of whom appeared at the framed issue hearing. Nor is there any evidence that petitioner was in any way responsible for these witnesses’ failure to appear. The issue about which they would testify, i.e., whether the vehicle involved in the accident, which fled the scene, was a 2003 Subaru or a 2005 Chevrolet, is central to the issue of whether that vehicle was stolen or was driven by Flores’s ex-husband who reported it stolen. Moreover, while Flores and GEICO claim prejudice on the ground that Flores’s ex-husband has left the country, Global Liberty has made it clear that it would consent to having him testify by electronic means (cf. Yu Hui Chen v Chen Li Zhi, 109 AD3d 815 [2d Dept 2013]), a concession not addressed by Flores and GEICO or the court below.