[App Div 1st Dept]

Just a little 3212, including (f).

Gardner v Cason, Inc., 2011 NY Slip Op 01971 (App. Div., 2nd 2011)

It was premature to award summary judgment at this stage of the case. "This is especially so where the opposing party has not had a reasonable opportunity for disclosure prior to the making of the motion" (Baron v Incorporated Vil. of Freeport, 143 AD2d 792, 793). The plaintiff and the defendant Grumbly submitted, among other things, affidavits containing discrepancies pertaining to the circumstances of the accident, including as to the decedent's culpability. Furthermore, no depositions have been conducted, including any depositions of key eyewitnesses identified in the police accident report. Accordingly, the Supreme Court should have denied the plaintiff's motion for summary judgment on the issue of liability with leave to renew after the completion of discovery (see Gruenfeld v City of New Rochelle, 72 AD3d 1025; Aurora Loan Servs., LLC v LaMattina & Assoc., Inc., 59 AD3d 578; Martinez v Ashley Apts. Co., LLC, 44 AD3d 830; Tyme v City of New York, 22 AD3d 571; see generally CPLR 3212[f]).

Carden v City of New York, 2011 NY Slip Op 01787 (App. Div., 2nd 2011)

In support of their motion for summary judgment, the defendants Hallen Construction Co., Inc. (hereinafter Hallen), and Keyspan Energy Delivery N.Y.C. (hereinafter Keyspan) submitted evidence sufficient to establish, prima facie, that they did not create the alleged defect in the roadway which caused the plaintiff driver to sustain injuries (see Courtright v Orange and Rockland Utils., Inc., 76 AD3d 501; Garcia v City of New York, 53 AD3d 644; Rubina v City of New York, 51 AD3d 761). In opposition, the plaintiffs submitted evidence sufficient to raise triable issues of fact as to the exact situs of the defect and whether Hallen and Kesypan created the alleged defect. Generally, an opposing party must make a showing of evidentiary proof in admissible form (see Zuckerman v City of New York, 49 NY2d 557). "Under certain circumstances [o]ur courts have recognized that proof which might be inadmissible at trial may, nevertheless, be considered in opposition to a motion for summary judgment'" (Guzman v Strab Constr. Corp., 228 AD2d 645, 646 quoting Zuilkowski v Sentry Ins., 114 AD2d 453, 454; see Phillips v Kantor & Co., 31 NY2d 307). Here, the accident report from the New York City Sanitation Department, which was produced during discovery and had sufficient indicia of reliability, raised a triable issue of fact as to whether the alleged defect was located within the area where Keyspan and Hallen performed their work (see Asare v Ramirez, 5 AD3d 193; Guzman v Strab Constr. Corp., 228 AD2d 645).

Heath v Liberato, 2011 NY Slip Op 01803 (App. Div., 2nd 2011)

In opposition, the defendant failed to raise a triable issue of fact. The defendant's opposition merely raised "feigned" issues of fact, which are insufficient to defeat a motion for summary judgment (Capraro v Staten Is. Univ. Hosp., 245 AD2d 256, 257; see Miller v City of New York, 214 AD2d 657; Garvin v Rosenberg, 204 AD2d 388). The defendant also failed to demonstrate that further discovery was warranted (see Benedikt v Certified Lbr. Corp., 60 AD3d 798; Lopez v WS Distrib., Inc., 34 AD3d 759).

Anastasio v Berry Complex, LLC, 2011 NY Slip Op 01778 (App. Div., 2nd 2011)

None of the defendants submitted evidence sufficient to establish their prima facie entitlement to judgment as a matter of law dismissing the complaint insofar as asserted against them (see Winegrad v New York Univ. Med. Ctr., 64 NY2d 851). Contrary to York's contention, a triable issue of fact exists as to whether it launched an instrument of harm by allegedly negligently erecting the sidewalk shed (see Manicone v City of New York, 75 AD3d 535; Ragone v Spring Scaffolding, Inc., 46 AD3d 652; Phillips v Seril, 209 AD2d 496). With respect to Design Built, triable issues of fact exist as to whether it exercised control over the construction site, as the general contractor, and whether it created or had actual or constructive notice of the alleged hazardous conditions (see Mancone v City of New York, 75 AD3d 535). Berry failed to establish, prima facie, that it lacked constructive notice of the alleged ice condition on the sidewalk abutting its property (see Martinez v Khaimov, 74 AD3d 1031; see generally Administrative Code of the City of New York 7-210). Since none of the parties satisfied their prima facie burden as the movants, we need not review the sufficiency of the plaintiff's opposition papers (see Totten v Cumberland Farms, Inc., 57 AD3d 653; Joachim v 1824 Church Ave., Inc., 12 AD3d 409).

AGFA Photo USA Corp. v Chromazone, Inc., 2011 NY Slip Op 01517 (App. Div., 1st 2011)

Defendants' argument that plaintiff's second motion for summary judgment should have been treated as a motion to renew, is improperly raised for the first time on appeal (see Callisto Pharm., Inc. v Picker, 74 AD3d 545 [2010]). Were we to review this argument, we would find that the court's treatment of the motion was entirely appropriate. When the court denied plaintiff's initial motion for summary judgment, it did so "without prejudice to another motion for summary judgment" with the submission of additional evidence (see CPLR 3212[f]).

Plaintiff established its prima facie entitlement to judgment as a matter of law on its claims for breach of the equipment lease agreement and service maintenance agreement by submitting the subject agreements, the agreement assigning AFGA Corporation's rights to plaintiff and evidence of nonpayment in the form of the demand notices (see Advanta Leasing Servs. v Laurel Way Spur Petroleum Corp., 11 AD3d 571 [2004]). In opposition, defendants failed to raise a triable issue of fact. Contrary to defendants' argument that plaintiff failed to meet its obligations under the service maintenance agreement, any alleged failure by plaintiff to provide parts and services had no bearing on defendants' breach under the lease agreement. Moreover, the record establishes that plaintiff indeed continued servicing the equipment during the relevant time period.

Plaintiff also established its entitlement to summary judgment on its conversion cause of action. Plaintiff submitted evidence demonstrating that the individual defendant exercised unauthorized dominion and control over the equipment by making unapproved alterations to it, by removing the equipment from the installation site without notice or consent and by relocating the equipment to his new business (see Meese v Miller, 79 AD2d 237, 242 [1981] ["(c)onversion is any unauthorized exercise of dominion or control over property by one who is not the owner of the property which interferes with and is in defiance of a superior possessory right of another in the property"]). Defendants' opposition failed to raise a triable issue of fact. The affidavit from the individual defendant conflicted with his deposition testimony and appears tailored to avoid the consequences of his earlier testimony (see e.g. Phillips v Bronx Lebanon Hosp., 268 AD2d 318, 320 [2000]).

Expert Testimony

Rowe v Fisher, 2011 NY Slip Op 01721 (App. Div. 1st 2011)

The motion court properly precluded plaintiffs' expert testimony on chelation because the expert's theories were contrary to the medical literature on the subject and therefore "unreliable" (Parker v Mobile Oil Corp., 7 NY3d 434, 447 [2006]).

Furthermore, the court properly precluded the testimony pursuant to Frye v United States (293 F 1013 [1923]). Although we find that plaintiffs' theory that chelating Carol at the start of her third trimester would have prevented or reduced the claimed injuries to the infant plaintiff was a novel theory subject to a Frye analysis, plaintiffs failed to rebut defendant's showing that this theory was not generally accepted within the relevant scientific community. Plaintiffs' [*2]position was based solely on their expert's own unsupported beliefs (see Marso v Novak, 42 AD3d 377, 378-379 [2007], lv denied 12 NY3d 704 [2009]).

Williams v Hooper, 2011 NY Slip Op 01683 (App. Div. 1st 2011)

The expert's opinion about this safety cushion was supported by nothing (see Jones v City of New York, 32 AD3d 706, 707 [2006] [rejecting expert's opinion regarding ostensible safety practice because "no support was offered for th(e) assertion, either in the form of a published industry or professional standard or in the form of evidence that such a practice had been generally accepted in the relevant industry"]). But as defendant Transit Authority failed to object to the expert's testimony, the point must be conceded to plaintiff for purposes of this appeal ^[FN1]

Hearsay : Scope of Authority

Boyce v Gumley-Haft, Inc., 2011 NY Slip Op 01722 (App. Div. 1st 2011)

The trial court committed reversible error when it permitted plaintiff Haydenn to testify that he had overheard the superintendent of the building commenting to the handyman that defendant "[didn't] want any niggers [working] in the building." This statement was inadmissible hearsay.

The statement does not fall within the exception to the hearsay rule for an agent's making of a statement as an activity within the scope of his authority (see Loschiavo v Port Auth. of N.Y. & N.J., 58 NY2d 1040, 1041 [1983]). Nothing in the record even suggests that the superintendent, who occasionally was given some direction by defendant when the latter visited the premises, was authorized to speak on defendant's behalf with respect to the building's employment practices and hiring and firing of employees (see Niesig v Team I, 76 NY2d 363, 374 [1990]; Silvers v State of New York, 68 AD3d 668, 669 [2009], lv denied 15 NY3d 705 [2010]; Aquino v Kuczinski, Vila & Assoc., P.C., 39 AD3d 216, 221 [2007]). Nor is defendant estopped from challenging the admission of Haydenn's statement because the defense declined the court's offer to have the jury decide whether defendant had authorized the superintendent to speak on his behalf; "the question whether a given set of facts takes a declarant's statement outside [an] exception [to the hearsay rule] is one of law" (People v Norton, 79 NY2d 808, 809 n * [1991]).

Contrary to plaintiffs' contention that the admission of Haydenn's statement, even if error, was harmless, the particular epithet used could have had no other effect than to prejudice the jury against defendant.

3013

CPLR § 3013 Particularity of statements generally

U.S. Underwriters Ins. Co. v Greenwald, 2011 NY Slip Op 01528 (App. Div., 1st 2011)

Contrary to Greenwald's contention, the complaint sets forth all the elements of a negligence cause of action and apprises Greenwald of the acts intended to be proved (see CPLR 3013). Moreover, the evidence that Greenwald was dining at a restaurant outside the vicinity of the apartment building and was not observed near the apartment around the time of the fire does not conclusively establish that he played no part in causing the fire. Since Greenwald's whereabouts at the material time are likely to be predominantly within his and Corsell's knowledge, it would be premature to dismiss the negligence cause of action prior to discovery (see Barrios v Boston Props. LLC, 55 AD3d 339 [2008]).

The bold is mine.

Service Complete upon Service: CPLR § 311

CPLR § 311 Personal service upon a corporation or governmental subdivision

Claudio v Show Piers on the Hudson, 2011 NY Slip Op 01585 (App. Div. 1st 2011)

The motion court properly charged Port Parties with knowledge of plaintiff's claim as of May 15, 2008. Service of process on Port Parties was "complete" when the summons and complaint were personally served upon an authorized agent of the Secretary of State on that date (Business Corporation Law § 306[b][1]; CPLR 311). Port Parties' contention that it did not actually receive the copy mailed to it by the Secretary of State is unsupported by the record and, in any event, unavailing. Business Corporation Law § 306(b)(1) does not make completion of service contingent upon the Secretary of State's mailing (see Flick v Stewart-Warner Corp., 76 NY2d 50, 56-57 [1990]).

negative inference

Matter of Aria E. v Lisette B., 2011 NY Slip Op 01578 (App. Div. 1st 2011)

The court properly drew a negative inference against the mother from her failure to testify (Matter of Jayvien E. [Marisol T.], 70 AD3d 430, 437 [2010]). Contrary to the mother's contention, "[i]nasmuch as proceedings under Article 10 of the Family Court Act are civil rather than criminal in nature, any inference drawn from the mother's failure to testify does not violate her Fifth Amendment rights in a criminal case pending at the time of the hearing" (Matter of Nicole H., 12 AD3d 182, 183 [2004]).

no fault gets curiouser and curiouser

M.N. Dental Diagnostics, P.C. v New York City Tr. Auth., 2011 NY Slip Op 01525 (App. Div. 1st 2011)

It is well settled that "the No-Fault Law does not codify common-law principles; it creates new and independent statutory rights and obligations in order to provide a more efficient means for adjusting financial responsibilities arising out of automobile accidents" (Aetna Life & Cas. Co. v Nelson, 67 NY2d 169, 175 [1986]). Since it is undisputed that there existed no contract between plaintiff's assignor and the NYCTA, the common carrier's obligation to provide no-fault benefits arises out of the no-fault statute. Therefore, the three-year statute of limitations as set forth in CPLR 214(2) is applicable here.

What does this mean for self-insureds?

Pomona Med. Diagnostics, P.C. v GEICO Ins. Co., 2011 NY Slip Op 50276(U) (App. Term, 1st 2011)

In opposition to plaintiff's prima facie showing of entitlement to judgment as a matter of law (see Countrywide Ins. Co. v 563 Grand Med., P.C., 50 AD3d 313, 314 [2008]; Central Nassau Diagnostic Imaging, P.C. v GEICO, 28 Misc 3d 34, 36 [2010]; Fair Price Med. Supply, Inc. v St. Paul Travelers Ins. Co., 16 Misc 3d 8, 9 [2007]), the report of defendant's peer review doctor, which relied on the assignor's medical records (see Cross Cont. Med., P.C. v Allstate Ins. Co., 13 Misc 3d 10, 11 [2006]; see also Urban Radiology, P.C. v Tri-State Consumer Ins. Co., 27 Misc 3d 140[A], 2010 NY Slip Op 50987[U] [2010]), raised a triable issue of fact as to whether the services provided by plaintiff were medically necessary (see Krishna v Liberty Mut. Ins. Co., 24 Misc 3d 128[A], 2009 NY Slip Op 51312[U] [2009]). Contrary to defendant's contention, however, its "submissions did not conclusively establish as a matter of law its defense of lack of medical necessity," and its cross motion was properly denied (A Plus Med., P.C. v Mercury Cas. Co., 23 Misc 3d 136[A], 2009 NY Slip Op 50824[U] [2009]).

The no-fault

Appellate Division

M.N. Dental Diagnostics, P.C. v Government Employees Ins. Co., 2011 NY Slip Op 01333 (App. Div., 1st 2011)

Insurance Law § 5105(b) requires that mandatory arbitration be used to resolve all disputes between insurers as to their responsibility for the payment of first-party benefits. 11 NYCRR 65-3.12(b) provides that "[i]f a dispute regarding priority of payment arises among insurers who otherwise are liable for the payment of first-party benefits, then the first insurer to whom notice of claim is given . . . shall be responsible for payment to such person. Any such dispute shall be resolved in accordance with the arbitration procedures established pursuant to section 5105 of the Insurance Law and section 65-4.11 of this Part."

Defendant argues that its denial of benefits raised an issue of coverage, rather than of payment, because it was not "otherwise [] liable" for the payment of first-party benefits. However, 11 NYCRR 65-4.11(a)(6) provides that "any controversy between insurers involving the responsibility or the obligation to pay first-party benefits (i.e., priority [of] payment or sources of payment as provided in section 65-3.12 of this Part) is not considered a coverage question and must be submitted to mandatory arbitration under this section." Thus, as "the first insurer to whom notice of claim [was] given" (11 NYCRR 65-3.12[b]), defendant was responsible or obligated to pay the no-fault benefits for the health services provided by plaintiff, irrespective of any issues of priority or source of payment. By denying plaintiff's claim on the stated ground that no-fault benefits were payable by another insurer (Fidelity and Guaranty Insurance Co.), defendant raised an issue as to which insurer was obligated to pay first-party [*2]benefits, which "[c]learly . . . is an inter-company dispute subject to mandatory arbitration" (see Paramount Ins. Co. v Miccio, 169 AD2d 761, 763 [1991], lv denied 78 NY2d 851 [1991]; Matter of Pacific Ins. Co. v State Farm Mut. Auto. Ins. Co., 150 AD2d 455, 456 [1989]).

Westchester Med. Ctr. v New York Cent. Mut. Fire Ins. Co., 2011 NY Slip Op 01458 (App. Div., 2nd 2011)

The plaintiff made a prima facie showing that it was entitled to judgment as a matter of law on its complaint to recover no-fault insurance medical payments by submitting evidence that the prescribed statutory billing form had been mailed and received by the defendant and that the defendant had failed to either pay or deny the claim within the requisite 30-day period (see Insurance Law § 5106[a]; 11 NYCRR 65-3.5; Westchester Med. Ctr. v Lincoln Gen. Ins. Co., 60 AD3d 1045, 1045-1046; Westchester Med. Ctr. v Progressive Cas. Ins. Co., 51 AD3d 1014, 1017; New York & Presbyt. Hosp. v Selective Ins. Co. of Am., 43 AD3d 1019, 1020).

In opposition to the plaintiff's motion, the defendant failed to raise a triable issue of fact as to whether it timely denied the plaintiff's claim. The defendant's denial of claim form NF-10 dated December 18, 2009, was fatally defective because it omitted several material items of information (see St. Vincent's Hosp. of Richmond v Government Empls. Ins. Co., 50 AD3d 1123, 1124; Nyack Hosp. v Metropolitan Prop. & Cas. Ins. Co., 16 AD3d 564, 565; Nyack Hosp. v State Farm Mut. Auto. Ins. Co., 11 AD3d 664, 665). The defendant also failed to submit sufficient evidence that it mailed the second denial of claim form NF-10 bearing the date December 31, 2009, to establish compliance with the 30-day period (see Nyack Hosp. v Metropolitan Prop. & Cas. Ins. Co., 16 AD3d 564; Hospital for Joint Diseases v Nationwide Mut. Ins. Co., 284 AD2d 374, 375). Thus, the defendant also failed to make a prima facie showing that it timely denied the claim in support of its cross motion for summary judgment dismissing the complaint.

Failure to establish timely denial of the claim results in preclusion of the defense that the intoxication of the insured was a contributing cause of the accident and subject to exclusion under the policy (see Presbyterian Hosp. in City of N.Y. v Maryland Cas. Co., 90 NY2d 274, 286). Accordingly, the Supreme Court should have granted the plaintiff's motion for summary judgment on the complaint and should have denied the defendant's cross motion for summary judgment dismissing the complaint.

Appellate Term

Edison Med. Servs., P.C. v Country-Wide Ins. Co., 2011 NY Slip Op 50193(U) (App. Term, 2nd, 11th & 13th Jud. Dists. 2011)

In the case at bar, defendant proffered no reasonable excuse as to why it served its answer late. Defendant merely asserted that, due to a clerical error, the caption of the answer it ultimately served was incorrect. However, the purported document, which listed the wrong assignor, could not properly be characterized as an answer to the complaint. Moreover, the foregoing error did not establish an excuse for the untimely service of the answer. According to a paralegal employed by defendant's law firm, the answer was served on August 2, 2007, almost four months after the default judgment had been entered. In view of the lack of a reasonable excuse for defendant's default, it is unnecessary to consider whether defendant sufficiently demonstrated the existence of a meritorious defense (see Levi v Levi, 46 AD3d 519 [2007]). Accordingly, as the Civil Court did not improvidently exercise its discretion in denying defendant's motion, the order is affirmed.

Pesce, P.J., and Weston, J., concur.

There is a Golia dissent.

GLM Med., P.C. v State Farm Mut. Auto. Ins. Co., 2011 NY Slip Op 50194(U) (App. Term, 2nd, 11th & 13th Jud. Dists. 2011)

The affidavits submitted by defendant established that the EUO scheduling letters were timely mailed in accordance with the affiants' employers' standard office practices and procedures (see St. Vincent's Hosp. of Richmond v Government Empls. Ins. Co., 50 AD3d 1123 [2008]; Residential Holding Corp. v Scottsdale Ins. Co., 286 AD2d 679 [2001]; Delta Diagnostic [*2]Radiology, P.C. v Chubb Group of Ins., 17 Misc 3d 16 [App Term, 2d & 11th Jud Dists 2007]). Defendant also submitted an affirmation from one of its attorneys, who was responsible for conducting the EUOs at issue. He alleged facts sufficient to establish that plaintiff had failed to appear at counsel's former law office for duly scheduled EUOs (see Stephen Fogel Psychological, P.C. v Progressive Cas. Ins. Co., 35 AD3d 720 [2006]; W & Z Acupuncture, P.C. v Amex Assur. Co., 24 Misc 3d 142[A], 2009 NY Slip Op 51732[U] [App Term, 2d, 11th & 13th Jud Dists 2009]). Such an appearance at an EUO is a condition precedent to the insurer's liability on the policy (see Insurance Department Regulations [11 NYCRR]
§ 65-1.1; Stephen Fogel Psychological, P.C., 35 AD3d at 722; Crotona Hgts. Med., P.C. v Farm Family Cas. Ins. Co., 27 Misc 3d 134[A], 2010 NY Slip Op 50716[U] [App Term, 2d, 11th & 13th Jud Dists 2010]). Further, contrary to the Civil Court's determination, there is no requirement that EUO scheduling letters conspicuously highlight the time and place of the EUO by use of, among other things, a bold or larger font (see Insurance Department Regulations [11 NYCRR] § 65-3.5 [b], [e]). Accordingly, the order is reversed and defendant's motion for summary judgment dismissing the complaint is granted. In light of the foregoing, we reach no other issue.

Infinity Health Prods., Ltd. v American Tr. Ins. Co., 2011 NY Slip Op 50195(U) (App. Term, 2nd, 11th & 13th Jud. Dists. 2011)

Defendant's proof consisted of the affidavit of its special investigator and the police accident report. As the police accident report did not constitute proof in admissible form (see LMS Med. Care, P.C. v State Farm Ins. Co., 15 Misc 3d 141[A], 2007 NY Slip Op 51072[U] [App Term, 2d & 11th Jud Dists 2007]), and the special investigator's affidavit relied, in part, upon the police accident report, such proof did not establish, as a matter of law, that the alleged injuries did not arise from an insured incident (see Central Gen. Hosp. v Chubb Group of Ins. Cos., 90 NY2d 195, 199 [1997]) so as to warrant the granting of summary judgment dismissing the complaint (see A.B. Med. Servs., PLLC v Clarendon Natl. Ins. Co., 25 Misc 3d 139[A], 2009 NY Slip Op 52383[U] [App Term, 9th & 10th Jud Dists 2009]). Accordingly, the order, insofar as appealed from, is affirmed.

ARCO Med. NY, P.C. v New York Cent. Mut. Fire Ins. Co., 2011 NY Slip Op 50184(U) (App. Term, 2nd, 11th & 13th Jud. Dists. 2011)

The affidavits submitted by defendant in support of its motion failed to establish that the IME scheduling letters had been mailed in accordance with Crossland's standard office practices and procedures or that the affiants had personally mailed the scheduling letters (see St. Vincent's Hosp. of Richmond v Government Empls. Ins. Co., 50 AD3d 1123 [2008]; Residential Holding Corp. v Scottsdale Ins. Co., 286 AD2d 679 [2001]; Delta Diagnostic Radiology, P.C. v Chubb Group of Ins., 17 Misc 3d 16 [App Term, 2d & 11th Jud Dists 2007]). Accordingly, the Civil Court properly denied defendant's motion for summary judgment.

However, plaintiffs were not entitled to summary judgment upon their cross motion because the affidavit submitted by plaintiffs' supervisor of medical billing pertained to the claims at issue in another action, rather than the claims at issue in this action (see Art of Healing Medicine, P.C. v Travelers Home & Mar. Ins. Co., 55 AD3d 644 [2008]; Dan Med., P.C. v New York Cent. Mut. Fire Ins. Co., 14 Misc 3d 44 [App Term, 2d & 11th Jud Dists 2006]). As a result, plaintiffs did not establish their prima facie case (see Zuckerman v City of New York, 49 NY2d 557 [1980]).

Park Slope Med. & Surgical Supply, Inc. v GEICO Ins. Co., 2011 NY Slip Op 50188(U) (App. Term, 2nd, 11th & 13th Jud. Dists. 2011)

The papers submitted in support of defendant's cross motion for summary judgment included two peer review reports in admissible form, both of which set forth a factual basis and medical rationale for the peer reviewers' opinions that there was a lack of medical necessity for the medical supplies at issue. In opposition to defendant's cross motion, plaintiff submitted an affirmation of its doctor which sufficiently demonstrated the existence of a question of fact as to medical necessity (see Quality Psychological Servs., P.C. v Mercury Ins. Group, 27 Misc 3d 129[A], 2010 NY Slip Op 50601[U] [App Term, 2d, 11th & 13th Jud Dists 2010]; Park Slope [*2]Med. & Surgical Supply, Inc. v New York Cent. Mut. Fire Ins. Co., 22 Misc 3d 141[A], 2009 NY Slip Op 50441[U] [App Term, 2d, 11th & 13th Jud Dists 2009]). In view of the existence of a triable issue of fact as to the medical necessity of the medical supplies in question, defendant's cross motion for summary judgment was properly denied (see Zuckerman v City of New York, 49 NY2d 557 [1980]).

3101; 3103; Common Interest Priv.

CPLR 3101 Scope of disclosure

Ford v Rector, Church-Wardens, Vestrymen of Trinity Church in the City of New York, 2011 NY Slip Op 01064 (App. Div., 1st 2011)

While defendants' discovery request for all plaintiff's home and cellular telephone records dating from six years before the sending of the anonymous faxes that purportedly led to her termination was overly broad and unnecessarily burdensome, the denial of the request in its entirety was inappropriate, given defendants' showing of the need for the discovery. Defendants allege that plaintiff was terminated not in retaliation for commencing a discrimination suit but because of her involvement in the sending of certain anonymous faxes and her dishonesty during the investigation into the sending of the faxes. Plaintiff asserts that she does not know the person who allegedly caused the faxes to be sent. However, there is documentary evidence suggesting that he is her brother-in-law. Thus, we conclude that plaintiff's telephone records, as circumscribed above, for the year preceding the sending of the faxes are "material and necessary" to the defense of this action (CPLR 3101[a]; see Anonymous v High School for Envtl. Studies, 32 AD3d 353, 358 [2006]).

Contrary to defendants' contention, production of the remainder of the information requested should not be compelled, despite plaintiff's untimely objection to the request (Lea v New York City Tr. Auth., 57 AD3d 269 [2008]; Haller v North Riverside Partners, 189 AD2d 615, 616 [1993]).

American Bank Note Corp. v Daniele, 2011 NY Slip Op 01063 (App. Div., 1st 2011)

Finally, there was no error in permitting defendants to testify at the hearing by means of a live video conference link from Argentina. First, the court quashed the subpoena plaintiffs had originally served on defendants and plaintiffs did not challenge this ruling on appeal. Thus, defendants' appearance via video conference was voluntary. Further, plaintiffs fully participated in that hearing.

Pursuant to CPLR 3103(a), the court may regulate "any disclosure device" in order to "prevent unreasonable annoyance, expense, embarrassment, disadvantage or other prejudice. . . " The decision to allow a party or witness to testify via video conference link is left to a trial court's discretion (People v Wrotten, 14 NY3d 33, 37-38 [2009] cert denied __ US __, 130 S Ct 2520 [2010]).

Here, defendant Daniele had not made travel arrangements to come to the United States. There was also a question of whether he could lawfully leave Argentina because of charges plaintiffs filed against him in that country. Thus, coming to New York to testify was "not feasible as a practical matter" (Matter of Singh, 22 Misc 3d 288, 290 (Sup Ct, Bronx County [*2]2008), and would have resulted in hardship (Rogovin v Rogovin, 3 AD3d 352, 353 [2004]). Accordingly it was proper to allow defendants to testify from Argentina via video conferencing.

Mt. McKinley Ins. Co. v Corning Inc., 2011 NY Slip Op 01061 (App. Div., 1st 2011)

In this action seeking a declaratory judgment establishing entitlement to insurance coverage for defense and/or indemnification, the IAS court did not abuse its discretion in ordering the subject documents produced (see Ulico Cas. Co. v Wilson, Elser, Moskowitz, Edelman & Dicker, 1 AD3d 223, 224 [2003]). The motion court properly held that Corning failed to establish that the subject documents were protected by the common interest privilege. While Corning asserted that the documents were "generated in furtherance of a common legal interest" between itself and the committees in the bankruptcy action and that the documents included, communications evincing strategy and preparation for an upcoming confirmation hearing, it submitted no evidence in support of these assertions. Moreover, Corning never stated, let alone established, that it or the committees had a reasonable expectation of confidentiality with respect to these communications. Accordingly, Corning failed to establish that the relevant communications with the committees were in furtherance of a common legal interest and that with respect to these communications, Corning and the committees had a reasonable expectation of confidentiality (see United states v Schwimmer, 892 F2d 237, 243-244 [2d Cir 1989]; In re [*2]Quigley Company, Inc., 2009 Bankr LEXIS 1352, 8-9 [Bankr SD NY 2009].

Yu Hui Chen v Chen Li Zhi, 2011 NY Slip Op 01267 (App. Div., 2nd 2011)

While depositions of parties to an action are generally held in the county where the action is pending (see CPLR 3110[1]), if a party demonstrates that conducting his or her deposition in that county would cause undue hardship, the Supreme Court can order the deposition to be held elsewhere (see Gartner v Unified Windows, Doors & Siding, Inc., 68 AD3d 815; LaRusso v Brookstone, Inc., 52 AD3d 576, 577). Here, the Supreme Court improvidently exercised its discretion in denying the plaintiff's cross motion for a protective order pursuant to CPLR 3103(a) directing that his deposition be conducted by remote electronic means. The plaintiff demonstrated that traveling from China to the United States for his deposition would cause undue hardship (see Gartner v Unified Windows, Doors & Siding, Inc., 68 AD3d at 815-816; Wygocki v Milford Plaza Hotel, 38 AD3d 237; Rogovin v Rogovin, 3 AD3d 352, 353; Matter of Singh, 22 Misc 3d 288; see also Hoffman v Kraus, 260 AD2d 435, 437; cf. Matter of Albarino, 27 AD3d 556).

In light of our determination that the plaintiff's deposition may be conducted by remote electronic means, the Supreme Court improvidently exercised its discretion in staying all proceedings in the action until the plaintiff could return to the United States for his deposition.

3215(c)(f): Defaults

CPLR § 3215 Default judgment

Brown v Andreoli, 2011 NY Slip Op 01060 (App. Div., 1st 2011)

Order, Supreme Court, New York County (George J. Silver, J.), entered June 9, 2010, which, in an action for personal injuries arising out of a motor vehicle accident, granted plaintiff's motion for a default judgment to the extent that if defendant did not file her answer within 45 days of service of the order with notice of entry, a default judgment would be entered against her, unanimously reversed, on the law, without costs, the motion denied, and the complaint dismissed as abandoned. The Clerk is directed to enter judgment accordingly.

Plaintiff failed to demonstrate a reasonable excuse for failing to move for a default judgment until more than one year after defendant's time to answer had expired (see CPLR 3215[c]; Mejia-Ortiz v Inoa, 71 AD3d 517 [2010]). Counsel's proffered explanation for the delay in moving for a default judgment, namely health problems, did not constitute a reasonable excuse since those health problems occurred outside the one-year period in which plaintiff had to move (see Mattera v Capric, 54 AD3d 827 [2008]).

The motion court, after determining that no reasonable excuse had been established, should have dismissed the complaint as abandoned (see CPLR 3215[c]; Perricone v City of New York, 62 NY2d 661, 663 [1984]; Opia v Chukwu, 278 AD2d 394 [2000]).

Midfirst Bank v Al-Rahman, 2011 NY Slip Op 01252 (App. Div., 2nd 2011)

The Supreme Court also properly denied that branch of the appellants' motion which was pursuant to CPLR 5015(a)(3) to vacate the judgment of foreclosure and sale, as they "failed to establish that the plaintiff procured the judgment of foreclosure and sale by fraud, misrepresentation, or other misconduct" (Tribeca Lending Corp. v Crawford, 79 AD3d at 1020; see Feldstein v Rounick, 295 AD2d 398).

Further, the plaintiff's alleged failure to comply with CPLR 3215(f) did not render the judgment a nullity, or warrant excusing the appellants' default in the absence of a reasonable excuse or a potentially meritorious defense (see Neuman v Zurich N. Am., 36 AD3d 601, 602; Araujo v Aviles, 33 AD3d 830; Coulter v Town of Highlands, 26 AD3d 456, 457).