Category: [App Div 1st Dept]

fugitive disentitlement doctrine

Gem Holdco, LLC v Changing World Tech., L.P., 2018 NY Slip Op 01563 [1st Dept 2018]

Although appellants appealed from orders and not the ensuing final judgment, under CPLR 5520(c) this Court has the discretion to deem the notices of appeal as valid and address the merits of the appeals (see Old Republic Constr. Ins. Agency of N.Y., Inc. v Fairmont Ins. Brokers, Ltd., 112 AD3d 456, 456 [1st Dept 2013]; Robertson v Greenstein, 308 AD2d 381 [1st Dept 2003], lv dismissed 2 NY3d 759 [2004]).

We also decline to bar the appeals based on the fugitive disentitlement doctrine. That doctrine permits a court to dismiss an appeal in civil cases where the party seeking relief is a fugitive evading the law whose absence frustrates the enforcement of a judgment or order (see People v Edwards, 117 AD3d 418, 418 [1st Dept 2014]).

The doctrine applies where the fugitive is a former New York resident who changed residency or otherwise fled to another state in a willful and deliberate effort to avoid the jurisdiction of the New York courts; was a resident of another state present in New York when an arrest warrant was issued who fled the state in order to avoid an arrest warrant; or, as in Wechsler v Wechsler (45 AD3d 470 [1st Dept 2007]), was wanted in New York pursuant to a warrant and refused to return to the state for fear of being arrested in defiance of a separate court order directing the fugitive to appear in court. Absent a clear showing that Danzik took improper steps to avoid extradition, the doctrine does not apply where, as here, he never resided in New York, was not present in New York when the arrest warrant was issued, has not appeared in New York to face the arrest warrant, and has not defied a separate order to appear. This more narrow application of the doctrine satisfies all its principal rationales (see Empire Blue Cross & Blue Shield v Finkelstein, 111 F3d 278, 280 [2d Cir 1997]). We also note that there is no basis for applying the doctrine to this corporate appellant.

 

Present sense, and other, exceptions [hearsay]

Gomes v Pearson Capital Partners LLC, 2018 NY Slip Op 01560 [1st Dept 2018]

In opposition, defendant failed to raise a triable issue of fact. We will not consider defendants' hearsay exception arguments, which are raised for the first time on appeal (see e.g. Gonzalez v New York City Health & Hosps. Corp., 29 AD3d 369, 370 [1st Dept 2006]), to raise an issue of fact as to whether plaintiff was the sole proximate cause of the accident. Even if we were to consider such arguments, they are unavailing. The business record exception is inapplicable, since defendants have not submitted the incident report for the December 24, 2012 accident. The present sense impression exception is also inapplicable, since the out-of-court statement from plaintiff to the foreman that he fell while climbing up the scaffold is not corroborated by independent evidence (see People v Cantave, 21 NY3d 374, 382 [2013]). The excited utterance exception does not apply, since defendants have not provided sufficient evidence of plaintiff's mental state or established that he made the hearsay statement to the foreman under the stress of excitement (see People v Johnson, 1 NY3d 302, 306 [2003]; cf. Heer v North Moore St. Devs., LLC, 61 AD3d 617, 618 [1st Dept 2009]). Furthermore, plaintiff's statement to the foreman does not fall within the declaration against interest exception because plaintiff was available to, and did, testify as a witness; there is no evidence that plaintiff knew the statement was adverse to his interests when it was made; and the supporting circumstances do not attest to its trustworthiness or reliability (see People v Soto, 26 NY3d 455, 460-461 [2015]).

Serve that subpoena right

Whitfield v Q-Boro Books, 2018 NY Slip Op 01552 [1st Dept 2018]

CPLR 2303(a) provides, in relevant part, that "a subpoena requiring attendance or a subpoena duces tecum shall be served in the same manner as a summons." Here, plaintiff admitted that he did not properly serve Chin with the trial subpoena. Because service was improper, there was no lawful judicial order in effect for Chin to disobey (see El-Dehdan v El-Dehdan, 26 NY3d 19, 29 [2015]).

Late Amendment

Federal Ins. Co. v Lakeville Pace Mech. Inc., 2018 NY Slip Op 01544 [1st Dept 2018]

Defendant waited more than two years to move to amend its answer to include the statute of limitations defense, arguing that plaintiff's construction negligence claim, with a three-year statute of limitations (CPLR 214[4]), was untimely.

Moreover, defendant made its motion almost immediately after the expiration of the six-year limitations period (by defendant's calculation) in which plaintiff could have brought the same action as a breach of contract, even though all of the facts relied upon by defendant were known to it at the time it filed its original answer. Plaintiff, relying on defendant's waiver of any statute of limitations defense (CPLR 3211[e]), was prejudiced by the loss of the opportunity to interpose a timely breach of contract claim, which it could have done "had the original pleading contained what the [proposed] amended one wants to add" Armstrong v Peat, Marwick, Mitchell & Co. , 150 AD2d 189, 190 [1st Dept 1989]).

The motion court properly concluded that these circumstances warranted denial of defendant's motion (see CPLR 3025[b]).

CPLR 3117(a)(2)-(a)(3)

CPLR 3117. Use of depositions

International Fin. Corp. v Carrera Holdings Inc., 2018 NY Slip Op 01541 [1st Dept. 2018]

The court erred in concluding that Carrera S.P.A.'s principal Vivek Jacob's deposition testimony was admissible under CPLR 3117(a)(2), which permits deposition testimony of an officer of a party for use "by any party who was adversely interested when the deposition testimony was given or who is adversely interested when the deposition testimony is offered in evidence." Carrera, which offered the testimony in evidence, was not a party adverse to Jacob at the time when he was deposed or at trial. Nevertheless, the court correctly concluded that Jacob's testimony was admissible under CPLR 3117(a)(3)(I) because he was deceased by the time of trial. To the extent portions of Jacob's testimony were not based on his personal knowledge of the Tajik government's interference with operations at Giavoni (see Wathne Imports, Ltd. v PRL USA, Inc., 125 AD3d 434 [1st Dept 2015]; Eustaquio v 860 Cortlandt Holdings, Inc., 95 AD3d 548 [1st Dept 2012]), there is other evidence to support those facts, and plaintiff was not prejudiced by any error in admitting that testimony (see CPLR 2002).

Plaintiff waived any objection to defendants' failure to produce relevant financial documents, the existence of which it was aware of as early as 2009 (well before trial in 2015), by filing its note of issue and certificate of readiness (see Fernandez v City of New York, 84 AD3d 595 [1st Dept 2011]).

Reargue: CPLR 2221

Dogwood Residential, LLC v Stable 49, Ltd., 2018 NY Slip Op 01574 [1st Dept 2018]

The court providently exercised its discretion in granting plaintiffs leave to reargue although they failed to comply with the requirement of CPLR 2221(f) that in a combined motion for reargument and renewal each item of relief be separately identified (see generally Corporan v Dennis, 117 AD3d 601 [1st Dept 2014]; see also GMAC Mtge., LLC v Spindelman, 136 AD3d 1366, 1367 [4th Dept 2016]). The court also providently exercised its discretion in considering a legal argument not expressly made by plaintiffs in opposition to defendant's motion, since the issue could not have been avoided if it had been raised at that stage (see generally Harrington v Smith, 138 AD3d 548 [1st Dept 2016]; see also Rochester v Quincy Mut. Fire Ins. Co., 10 AD3d 417, 418-419 [2d Dept 2004]).

Speculation is not a substitute for competent evidence

Eden v Johnson, 2018 NY Slip Op 01656 [1st Dept 2018]

Plaintiff alleges that decedent's heart attack was caused by defendants' discontinuation of his aspirin regimen. Although the record supports a finding that decedent stopped taking aspirin, there is no basis to conclude that defendants advised him to do so. "Speculation is not a substitute for competent evidence even in an action for wrongful death" (Waters v Mount Sinai School of Medicine-Mount Sinai Hosp., 38 AD3d 257, 257 [1st Dept 2007]).

Undertaking CPLR 6312

CPLR 6312(b)

Suttongate Holdings Ltd. v Laconm Mgt. N.V., 2018 NY Slip Op 01654 [1st Dept 2018]

The motion court should, however, have ordered plaintiff to post an additional undertaking, rather than applying the undertaking posted in connection with the prior preliminary injunction order. CPLR 6312(b) requires that "prior to the granting of a preliminary injunction, the plaintiff shall give an undertaking in an amount to be fixed by the court." Moreover, the undertaking must be "rationally related to defendants' potential damages should the preliminary injunction later prove to have been unwarranted" (Peyton v PWV Acquisition LLC, 101 AD3d 446, 447 [1st Dept 2012]). According to defendants' own affidavit, the cost of obtaining mortgages on the 18 properties would be $31,000. Thus, an additional undertaking in the amount of $50,000 is appropriate.

CPLR 3119

CPLR 3119. Uniform interstate depositions and discovery

Matter of 91 St. Crane Collapse Litig., 2018 NY Slip Op 016512018 NY Slip Op 01651 [1st Dept 2018]

CPLR 3119, which adopted the Uniform Interstate Deposition and Discovery Act, provides a mechanism for disclosure in New York for use in an action that is pending in another state or territory within the United States (Matter of Kapon v Koch, 23 NY3d 32 [2014]), not the other way around. Thus, it is not applicable in this case, in which parties to an action pending in New York seek discovery from out-of-state witnesses. In any event, the court providently exercised its discretion in denying the relief sought since the moving defendants failed to show that the testimony they seek is unrelated to diagnosis and treatment and is the only avenue of discovering the information sought (see Tuzzolino v Consolidated Edison Co. of N.Y., 135 AD3d 447 [1st Dept 2016]; Ramsey v New York Univ. Hosp. Ctr., 14 AD3d 349, 350 [1st Dept 2005]).