Category: [App Div 1st Dept]

4518

CPLR R. 4518 Business records

Landmark Capital Invs., Inc. v Li-Shan Wang, 2012 NY Slip Op 02430 (1st Dept., 2012)

The record supports the finding that defendant Wang (defendant) was properly served. The detailed description of the service attempts on defendant and of the interior of defendant's building supported the determination that the process server was credible. Although the process server was under investigation for improper record keeping by the Department of Consumer Affairs, the relevant portions of the record support the finding that his version of facts was accurate (cf. Matter of Barr v Department of Consumer Affairs of City of N.Y., 70 NY2d 821 [1987]).

Plaintiff established its entitlement to judgment as a matter of law by relying in part on the original loan file prepared by its assignor. Plaintiff relied on these records in its regular course of its business (see Merrill Lynch Bus. Fin. Servs. Inc. v Trataros Constr., Inc., 30 AD3d 336, 337 [2006], lv denied 7 NY3d 715 [2006]). Defendant failed to raise a triable issue as to whether plaintiff was "doing business in this state without authority," which, under Business Corporation Law § 1312(a), would preclude it from bringing suit. Although plaintiff often purchased debt held by New York debtors, this, as an activity carried on by an Ohio company with no offices or employees in New York, is not sufficient to constitute doing business under section 1312 (see Beltone Elecs. Corp. v Selbst, 58 AD2d 560 [1977]).

3212 and (f)

3212

Fook Cheung Lung Realty Corp. v Yang Tze Riv. Realty Corp., 2012 NY Slip Op 02793 (1st Dept., 2012)

J & A provided its insurer with notice of plaintiff's property damage claim within a reasonable time (see Great Canal Realty Corp. v Seneca Ins. Co., Inc., 5 NY3d 742, 743 [2005]). J & A made a prima facie showing on its motion through the affidavit of its vice president stating the date that J & A arrived at the construction site and the extent of its duties and denying knowledge of the property damage until J & A's receipt of an attorney's letter in May of 2007, coupled with the deposition testimony of plaintiff's president regarding the date he first noticed the damage, which was before J & A's arrival. QBE's claim in opposition that J & A had knowledge of the damage before May of 2007 failed to raise an issue of fact, as evidence of conversations between plaintiff's president and a representative of the general contractor working at the adjoining premises and of complaints to the Department of Buildings would not necessarily have put J & A on notice, and it is mere conjecture that J & A was in fact told by others [*2]of the damage. QBE's claimed need for discovery to oppose the motion reflected an ineffectual mere hope (see MAP Mar. Ltd. v China Constr. Bank Corp., 70 AD3d 404 [2010]). In view of the foregoing, we also find that the determination as to the duty to indemnify was not premature.

Taylor v One Bryant Park, LLC, 2012 NY Slip Op 02427 (1st Dept., 2012)

Although summary judgment is not warranted where "credible evidence reveals differing versions of the accident" (Ellerbe v Port Auth. of N.Y. & N.J., 91 AD3d 441, 442 [2012]), the evidence upon which defendants rely is neither credible, nor admissible. The workers' compensation C-2 report is not signed or authenticated, and it is not conclusively clear who created the report or where that person acquired the information (see Zuluaga v P.P.C. Const., LLC, 45 AD3d 479 [2007]). Assuming that the site medic listed on the report completed it, an affidavit from that same medic gives a different version of the accident from that listed on the C-2. The affidavit does not address the inconsistency, and is also not notarized. "While hearsay statements may be used to oppose a summary judgment motion, such evidence is insufficient to warrant a denial of the motion where [as here] it is the only evidence submitted in opposition" (see Rivera v GT Acquisition 1 Corp., 72 AD3d 525, 526 [2010]).

Arbitration

Brooks v BDO Seidman, LLP, 2012 NY Slip Op 02768 (1st Dept., 2012)

The arbitration award was properly confirmed since the arbitration panel did not engage in any misconduct to warrant vacatur of the award (see CPLR 7511[b][1][i]). There is no indication that the panel precluded or restricted the parties from submitting any evidence on the motion. Indeed, the record shows that the parties submitted extensive briefs and documentary evidence in support of their respective positions. Although the panel made a determination of the proceeding on respondent's motion for summary judgment, this was not improper since arbitrators are not compelled to conduct hearings, and may decide a case on summary judgment (see e.g. TIG Ins. Co. v Global Intl. Reins. Co., Ltd., 640 F Supp 2d 519, 523 [SD NY 2009]; see also Griffin Indus., Inc. v Petrojam, Ltd., 58 F Supp 2d 212, 219-220 [SD NY 1999]). Moreover, the arbitration clause of the parties' Engagement Letter did not prohibit the arbitrators from using this type of disposition (see Matter of Silverman [Benmor Coats], 61 NY2d 299, 308 [1984]; cf. Barnes v Washington Mut. Bank, FA, 40 AD3d 357 [2007], lv denied 9 NY3d 815 [2007], cert [*2]denied 553 US 1057 [2008]).

Matter of Matter of Beals v New York City Tr., 2012 NY Slip Op 02784 (1st Dept., 2012)

The arbitrator properly declined to apply the collective bargaining agreement's statute of limitations on the ground that, pursuant to its terms, it had not commenced running while an investigation of the conduct leading to the disciplinary charges against petitioner was under way. In any event, any error by the arbitrator in interpreting the facts or applying the law on this issue did not provide a basis for vacatur of the award (see Matter of Adolphe v New York City Bd. of Educ., 89 AD3d 532, 533 [2011]). Petitioner waived his claim that the arbitrator should have enforced his witness subpoenas by failing to seek a stay of the arbitration and a court ruling compelling compliance and by continuing with the arbitration. Moreover, an arbitrator's erroneous evidentiary rulings may support vacatur only if the evidence would have been pertinent and material (see Matter of Professional Staff Congress/City Univ. of N.Y. v Board of Higher Educ. of City of N.Y., 39 NY2d 319, 323 [1976]). The unproduced testimony of the investigators would have been merely hearsay and cumulative of the testimony based on personal knowledge that had been heard from witnesses and targets of petitioner's misconduct, the testimony of the Transit Authority managers that the use of profanity was common in the workplace would not have shed light on other charges or rebutted the charge that petitioner's use of profanity was pervasive, and the woman working in a rehabilitation facility was not a Transit Authority employee subject to subpoena. To the extent that any of the unproduced testimony may have been useful for impeachment, the foreclosure of collateral evidence going to credibility is not misconduct (see Kaminsky v Segura, 26 AD3d 188, 189 [2006]; Matter of Smith v Suffolk County Police Dept., 202 AD2d 678, 679 [1994], lv denied 84 NY2d 807 [1994]). Petitioner fails to point to any provision in the collective bargaining agreement to support his contention that the arbitrator exceeded a restriction on his power (see Matter of Chaindom Enters., Inc. v Furgang & Adwar, L.L.P., 10 AD3d 495, 497 [2004], lv denied 4 NY3d 709 [2005]). The contention that the failure to consider his alcoholism defense renders the award in violation of public policy is merely a semantic variation on the ineffective claim that the arbitrator failed to properly evaluate [*2]the evidence (see Kalyanaram v New York Inst. of Tech., 79 AD3d 418, 419-420 [2010], lv denied 17 NY3d 712 [2011]).

Transparent Value, L.L.C. v Johnson, 2012 NY Slip Op 02388 (1st Dept., 2012)

Contrary to petitioner's claim, the award does not violate public policy. When a court is asked to vacate an arbitral award on public policy grounds, "[t]he focus of inquiry is on the result, the award itself" (Matter of New York State Correctional Officers & Police Benevolent Assn. v State of New York, 94 NY2d 321, 327 [1999] [emphasis in original]). "[W]here the final result creates an explicit conflict with other laws and their attendant policy concerns," a court will vacate the award (id. [emphasis in original]). In the case at bar, as in Correctional Officers (see id. at 327-328), the award does not violate a law.
Petitioner will not violate any laws by paying respondent x dollars or transferring y units to him. Petitioner's reliance on a letter from ALPS Distributors, Inc., the distributor of petitioner's mutual funds, is unavailing; ALPS has no obligation to pay respondent anything.

"An arbitration award may be vacated on public policy grounds only where it is clear on its face that public policy precludes its enforcement" (Matter of Jaidan Indus. v M.A. Angeliades, Inc., 97 NY2d 659, 661 [2001]; see also Matter of Metrobuild Assoc., Inc. v Nahoum, 51 AD3d 555, 556-557 [2008], lv denied 11 NY3d 704 [2008]). That is not the case here.

It is true that "a court will not enforce a contract that violates public policy" (Correctional Officers, 94 NY2d at 327). However, "the courts must be able to examine an arbitration agreement . . . on its face, without engaging in extended factfinding or legal analysis, and conclude that public policy precludes its enforcement" (Matter of Sprinzen [Nomberg], 46 NY2d 623, 631 [1979]). On its face, the agreement between the parties does not require respondent to perform brokerage services (see Foundation Ventures, LLC v F2G, Ltd., 2010 WL 3187294, *1, *7, 2010 US Dist LEXIS 81293, *3, *21 [SD NY, Aug. 11, 2010][FN1]).

Ayzenberg v Bronx House Emanuel Campus, Inc., 2012 NY Slip Op 02396 (1st Dept., 2012)

In this action for personal injuries allegedly suffered by plaintiff while she and her husband were guests at defendant's camp facility, defendant moved to stay the proceeding and compel arbitration based on an arbitration clause contained in the application for defendant's camp program that was filled out by plaintiff's husband and bears his signature. We find that the arbitration clause is binding on plaintiff. Irrespective of whether there was a language barrier that precluded plaintiff and her husband from understanding the content of the application, they are bound by its enforceable terms (see Shklovsky v Kahn, 273 AD2d 371, 372 [2000]). Although plaintiff's husband signed the application, which provided for the couples' joint participation in defendant's program, plaintiff is bound by it since her husband had, at the very least, apparent authority to sign for her (see Restatement, Agency 2d, § 8 and § 27).

Plaintiff's assertion that the arbitration clause does not apply to this personal injury action because it provides for the submission of claims "pursuant to the Commercial Rules of the American Arbitration Association," is unavailing. The clause provides for arbitration of "any dispute resulting from [their] stay at" defendant's facility (italics supplied), and thus, this matter is not excluded (see Marmet Health Care Center, Inc., et al. v Brown, __ US __, 132 S Ct 1201 [2012]; see also Remco Maintenance, LLC v CC Mgt. & Consulting, Inc., 85 AD3d 477 [2011]).

Kudler v Truffelman, 2012 NY Slip Op 02155 (1st Dept., 2012)

As the partnership agreement between the parties did not involve interstate commerce, and was not covered by the Federal Arbitration Act, the award of punitive damages was improper under the rule in Garrity v Lyle Stuart, Inc. (40 NY2d 354 [1976]), which, unless preempted, prohibits arbitrators from awarding punitive damages under New York public policy.

The court erred in confirming the arbitrator's decision to award petitioner the assignment of the insurance policies taken out on his life by the partnership. The arbitrator exceeded her powers and gave a completely irrational construction to the provisions of the partnership agreement, thereby effectively rewriting it in a manner that was unjust and in violation of the spirit of the agreement (see Matter of Turner [Booth Mem. Med. Ctr.]), 63 NY2d 633 [1984]; Fishman v Roxanne Mgt., 24 AD3d 365, 366 [2005]); Integrated Sales v Maxell Corp. of Am., 94 AD2d 221, 225 [1983]). The arbitrator also exceeded her powers in this matter by ordering respondents to pay any and all loans taken out by them on those assigned life insurance policies. The court otherwise properly declined to vacate the arbitration award in part or in its entirety, and, contrary to petitioner's claim, properly excluded the face value of the assigned policies from the income executions. In this regard, since there was no clearly prevailing party, the award of attorney's fees was unwarranted (see Nestor v McDowell, 81 NY2d 410, 415-416 [1993]; Village of Hempstead v Taliercio, 8 AD3d 476 [2004]).

In light of the fact that the arbitration award was completely irrational to the extent it ordered respondents to assign the life insurance policies to petitioner and to the extent it further ordered respondents to pay back the loans taken out by them on those assigned policies, and must be modified to the extent of reassigning those policies to respondents, the appeals from the subsequent orders with respect to respondents' obligation to pay the loans on the policies are moot.

Gomez v Brill Sec., Inc., 2012 NY Slip Op 01877 (1st Dept., 2012)

Insofar as, here, the agreement to arbitrate, by its very terms, clearly precludes arbitration when arbitrable claims are brought as a class action, plaintiffs cannot be required to arbitrate their class action claims. While "[i]t has long been this State's policy that, where parties enter into an agreement and, in one of its provisions, promise that any dispute arising out of or in connection with it shall be settled by arbitration, any controversy which arises between them and is within the compass of the provision must go to arbitration" (Matter of Exercycle Corp. [Mararatta], 9 NY2d 329, 334 [1961]), whether arbitration is mandated, however, turns entirely on the language of the agreement between the parties (Matter of Waldron [Goddess], 61 NY2d 181, 183 [1984] ["It is settled that a party will not be compelled to arbitrate and, thereby, to surrender the right to resort to the courts, absent evidence which affirmatively establishes that the parties expressly agreed to arbitrate their disputes" (internal quotation marks omitted)]; Matter of Acting Supt. of Schools of Liverpool Cent. School Dist. [United Liverpool Faculty Assn.], 42 NY2d 509, 512 [1977]; Gulf Underwriters Ins. Co. v Verizon Communications, Inc., 32 AD3d 709, 710 [2006]; Harris v Shearson Hayden Stone, 82 AD2d 87, 95 [1981], affd 56 NY2d 627 [1982]). Accordingly, since an agreement to arbitrate is a contract, and when clear, shall "be enforced according to its terms," (Vermont Teddy Bear Co. v 538 Madison Realty Co., 1 NY3d 470, 475 [2004] [internal quotation marks omitted]; First Options of Chicago, Inc. v Kaplan, 514 US 938, 943 [1995] ["arbitration is simply a matter of contract between the parties"]), while parties who clearly and expressly agree to arbitrate shall be so compelled, parties who unequivocally agree to forego arbitration under certain circumstances cannot be compelled to arbitrate when those enumerated circumstances exist.

Eve of trial SJ

3212(a)

Ovenseri v St. Barnabas Hosp., 2012 NY Slip Op 02601 (1st Dept., 2012)

Appeals from order, Supreme Court, Bronx County (Robert E. Torres, J.), entered March 15, 2011, which, among other things, stayed all proceedings in this action for 90 days pending a determination by the Workers' Compensation Board regarding plaintiff's status at the time of the alleged accident, and order, same court and Justice, entered July 19, 2011, which denied as moot defendant's motion to modify the order entered March 15, 2011 by, among other things, deleting the 90-day limit on the stay, unanimously dismissed, without costs, as moot. Order, same court and Justice, entered December 2, 2011, which, to the extent appealed from as limited by the briefs, denied defendant's motion to stay all proceedings in this action pending its appeal of the Board's determination, and thereupon denied its motion to dismiss the complaint, unanimously affirmed, without costs.

Plaintiff, a participant in an out-patient program conducted on premises under the control of defendant hospital, alleges that she was injured when she slipped on a wet floor while she was voluntarily assisting during the program's coffee break.

Defendant is not entitled to a stay of the proceedings in this action pending a determination of its appeal by the Board. Indeed, the matter should not have been referred to the Board, as defendant failed to raise the workers' compensation defense until its eve-of-trial application for a stay, after the time for making summary judgment motions had expired (see Shine v Duncan Petroleum Transport, Inc., 60 NY2d 22, 27-28 [1983]; Sangare v Edwards, 91 AD3d 513 [2012]). Nor should plaintiff's case be dismissed for her purported failure to timely file a workers' compensation claim. Defendant never raised this argument before the motion court, and it expressly waived the argument in its appeal of the Board's determination denying as time-barred any claim for workers' compensation benefits. 

Defendant's appeals from the orders entered March 15, 2011 and July 19, 2011 have been rendered moot by the Board's determination.

3117(a)(2) Use of Deposition at trial

CPLR R. 3117 Use of depositions

Novas v Zuckerman, 2012 NY Slip Op 02271 (1st Dept., 2012)

CPLR 3117(a)(2) provides that "so far as admissible under the rules of evidence," a party's deposition "may be used for any purpose by any party who was adversely affected when the deposition testimony was given or who is adversely interested when the deposition testimony is offered in evidence." However, although deposition testimony is generally admissible under CPLR 3117(a)(2), that section does not constitute an "absolute and unqualified right to use the deposition at any time during the course of trial" (Feldsberg v Nitschke, 49 NY2d 636, 643 [1980]). The trial court retains discretion concerning the admissibility of such evidence and its exercise of discretion "is not reviewable save for a clear abuse of discretion" id.

Here, the trial court providently exercised its discretion in denying plaintiff's application to introduce into evidence portions of Dr. Zuckerman's deposition testimony. The testimony at issue concerned the necessity of full-length and/or standing leg X rays to measure plaintiff's joint-line on his knee. Contrary to plaintiff's contention, the proffered testimony would not have rebutted the testimony of defendant's expert, who only testified as to the amount of femoral bone removed. The expert did not testify as to measuring the joint line, nor the type of X rays needed to measure the joint line. Moreover, the preclusion of the testimony was not prejudicial to plaintiff's case, since the testimony of defendant's expert was based on X rays that were already in evidence (see e.g. Gogatz v New York City Tr. Auth., 288 AD2d 115, 116 [2001]).

Venue

CPLR § 503 Venue based on residence

CPLR § 510 Grounds for change of place of trial

CPLR R. 511 Change of place of trial

Simon v Usher, 2012 NY Slip Op 01544 (1st Dept., 2012)

The motion to change venue was properly granted upon the grounds that, except for defendants Usher and Usher, M.D., P.C., all of the defendants and plaintiffs reside in Westchester County, and that while Usher, M.D., P.C., maintains a satellite office in Bronx County that it rents one day per month, Usher's primary office is located in Westchester County, the office where plaintiff was treated. Thus, movants met their initial burden of establishing that the Bronx County venue chosen by plaintiffs is improper (CPLR 503[a]; 510[1]; Hernandez v Seminatore, 48 AD3d 260 [2008]), and since [*2]plaintiffs forfeited their right to select the venue by choosing an improper venue in the first instance, venue is properly placed in Westchester County, where most of the parties reside (Weiss v Wal-Mart Stores E., L.P., 83 AD3d 461 [2011]).

Lapidus v 1050 Tenants Corp., 2012 NY Slip Op 02842 (2nd Dept., 2012)

A party moving for a change of venue pursuant to CPLR 510(3) has the burden of demonstrating that the convenience of material witnesses and the ends of justice will be promoted by the change (see CPLR 510[3]; McManmon v York Hill Hous., Inc., 73 AD3d 1137, 1138; Rochester Drug Coop., Inc. v Marcott Pharmacy N. Corp., 15 AD3d 899, 899; Heinemann v Grunfeld, 224 AD2d 204). In doing so, the moving party must set forth (1) the names, addresses, and occupations of prospective witnesses, (2) the facts to which the prospective witnesses will testify at trial, so that the court may judge whether the proposed evidence of the prospective witnesses is necessary and material, (3) a statement that the prospective witnesses are willing to testify, and (4) a statement that the prospective witnesses would be greatly inconvenienced if the venue of the action was not changed (see Lafferty v Eklecco, LLC, 34 AD3d 754, 755; O'Brien v Vassar Bros. Hosp., 207 AD2d 169, 172).

Here, the defendant failed to establish that the real estate agent who cobrokered the sale of the plaintiffs' apartment in its cooperative building would be greatly inconvenienced if venue was not changed to New York County (see McManmon v York Hill Hous., Inc., 73 AD3d at 1138; Walsh v Mystic Tank Lines Corp., 51 AD3d 908; Ferndandes v Lawrence, 290 AD2d 412; Blumberg v Salem Truck Leasing, 276 AD2d 577; Maynard v Oakes, 144 AD2d 229, 230), and failed to satisfy all of the required criteria for a change of venue with respect to an attorney who served the defendant [*2]with a restraining notice in a related action. The remaining prospective witnesses identified by the defendant are its employees or agents, whose convenience is not a factor in considering a motion for a change of venue pursuant to CPLR 510(3) (see McManmon v York Hill Hous., Inc., 73 AD3d at 1138; Curry v Tysens Park Apts., 289 AD2d 191; Cilmi v Greenberg, Trager, Toplitz & Herbst, 273 AD2d 266, 267; D'Argenio v Monroe Radiological Assoc., 124 AD2d 541, 542). Accordingly, the defendant's motion pursuant to CPLR 510(3) to change the venue of the action from Suffolk County to New York County based upon the convenience of material witnesses should have been denied.

A long no-fault case

Cividanes v City of New York, 2012 NY Slip Op 02179 (1st Dept., 2012)

…

One of the main features of the No-Fault Insurance Law is that it limits the right to bring a personal injury action for damages arising out of an automobile accident (Insurance Law § 5104[a]). On the one hand, "first-party benefits," also referred to as basic economic loss coverage, are available to a "covered person" regardless of fault (id.)[FN1]. On the other hand, in exchange for receiving such no-fault benefits, a person injured in an automobile accident may bring a plenary action in tort to recover for noneconomic loss but only if he or she has suffered a "serious injury" within the meaning of the No-Fault Law (Oberly v Bangs Ambulance, 96 NY2d 296, 296-297 [2001]).

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Forum Selection Clause

Public Adm'r Bronx County v Montefiore Med. Ctr., 2012 NY Slip Op 02411 (1st Dept., 2012)

The forum selection clauses in the admission agreements at issue provide that "[a]ny and all actions arising out of or related to th[e] Agreement[s] shall be brought in . . . Westchester County." Because this action arises out of or relates to Morningside's duties and obligations under the agreements, the clauses apply and thus venue was properly transferred to Westchester County (see Buhler v French Woods Festival of Performing Arts, 154 AD2d 303 [1989]; cf. De La Cruz v Caddell Dry Dock & Repair Co., Inc., 56 AD3d 365, 366 [2008]). Plaintiff has failed to show that enforcement of the forum selection clauses would violate public policy or that a trial in Westchester County would be so impracticable and inconvenient that he would be deprived of his day in court (see Bank Hapoalim (Switzerland) Ltd. v Banca Intesa S.p.A., 26 AD3d 286, 288 [2006]; cf. Yoshida v PC Tech U.S.A. & You-Ri, Inc., 22 AD3d 373 [2005]). Moreover, there is no allegation that the agreements at issue were the result of fraud or overreaching (cf. DeSola Group v Coors Brewing Co., 199 AD2d 141, 141-142 [1993]). Although defendant Montefiore was not a party to the agreements, in order to avoid inconsistent verdicts, the entire action was properly transferred to Westchester County (see Woodhouse v Orangetown Pediatrics, 213 AD2d 362 [1995]).

Personal Jurisdiction. Consent.

Pena v R & B Transp., 2012 NY Slip Op 02389 (1st Dept., 2012)

Defendant R & B is a federally regulated motor carrier, covered by the Motor Carrier Act of 1935. Pursuant to that act, it appointed an agent for service of process in New York (49 USC 13304). The IAS court adopted the referee's finding that this was not a consent to jurisdiction over R & B in New York. This was error. We have previously addressed this precise question, and found that the appointment of an agent under the act is consent to suit in this State (Eagle v Hall & Sons, Inc., 265 AD 809 [1942]; see also Brinkmann v Adrian Carriers, Inc., 29 AD3d 615, 617 [2006]).

Truck driver Boyd, a Georgia resident, was driving from Florida to Massachusetts when the accident occurred in New Jersey. As such, there is no basis for personal jurisdiction over him (Daniel B. Katz & Assoc. Corp. v Midland Rushmore, LLC, 90 AD3d 977 [2011]).