[App Div 1st Dept]

Construction in the first department

Bajraktari Mgt. Corp. v American Intl. Group, Inc., 2011 NY Slip Op 00621 (App. Div., 1st 2011)

The insurance policy clearly and unambiguously defines "Continuity Date" as December 29, 2004. The motion court correctly declined to consider parol evidence to ascertain the parties' intention as to that date (see W.W.W. Assoc. v Giancontieri, 77 NY2d 157, 162 [1990]). "[A] contract is not rendered ambiguous just because one of the parties attaches a different, subjective meaning to one of its terms" (Moore v Kopel, 237 AD2d 124, 125 [1997]).

Plaintiffs' remaining arguments based upon their contention that the policy is ambiguous are unavailing. Their argument that the policy should be construed in a manner that would be consistent with "the reasonable expectations of a New York City property owner" is also unavailing (see Slayko v Security Mut. Ins. Co., 98 NY2d 289, 296-297 [2002]).

The bold is mine.

What if it was a bench trial?

Kelly v Metropolitan Ins. & Annuity Co., 2011 NY Slip Op 00417 (App. Div., 1st 2011)

But rather than issuing a simple curative instruction, as would have been appropriate under the circumstances, the court interrogated each of the jurors individually concerning the nature of the gesture or sigh made by the expert. This protracted episode left the jurors with the distinct and unmistakable impression that the court disapproved of plaintiffs' expert and credited none of her testimony. Indeed, shortly following this interrogation, the court threatened to preclude plaintiffs' expert from testifying further, leaving plaintiffs without expert testimony on the crucial issue of defendants' negligence.

This prejudicial treatment of plaintiffs' expert is to be contrasted with the court's treatment of the defense expert, whom the court accorded wide latitude. Notably, the court did not similarly chide the defense's expert when he transgressed courtroom protocol. Defendant's expert, during direct, inappropriately interjected that the infant plaintiff "[p]robably should have left the [training wheels] on to begin with," a gratuitous statement intended to undermine the court's ruling that in light of the infant's age, neither he nor his parents could be considered comparatively negligent. This statement, in direct contravention of the court's ruling, arguably tainted the jury, and, unlike plaintiffs' expert's "sigh" or gesticulation, was an unambiguous statement, uttered directly to and intended to prejudice the jury. Indeed, plaintiffs' counsel pointed out that, in contradistinction to plaintiffs' expert, the defense expert had "intentionally responded . . . having nothing to do with the question to insert his opinion about the happening of the accident in the first place." The court agreed that the actions of the expert were "egregious," but nonetheless denied the plaintiffs' motion to strike his testimony, issuing instead a simple curative instruction.

The prejudice was compounded by the failure of the trial court to give the charge requested by plaintiffs, i.e., that the absence of a building code violation is not tantamount to the absence of negligence. This left the jury with the distinct impression that defendants' compliance with the building code was a defense to liability.

***

Because these errors served cumulatively to deprive plaintiffs of a fair trial, we hereby modify the judgment as indicated, and order a new trial.

The bold is mine.

Mandamus requires refusal.

Donoghue v New York City Dept. of Educ., 2011 NY Slip Op 00425 (App. Div. 1st 2011)

Article 78 is not limited to review of administrative determinations since a court also has subject matter jurisdiction to review a body's or officer's failure to act (see CPLR 7801; 7803[1]). On March 6, 2009, petitioner asked respondent New York City Department of Education (DOE) to retroactively grant her tenure in earth science, but DOE failed to act on her request.

Nor is this proceeding, which was commenced on April 6, 2009, barred by the statute of limitations. "In a proceeding for mandamus relief, it is necessary to make a demand and await a refusal, and the limitations period does not commence until the refusal" (Adams v City of New York, 271 AD2d 341, 341-342 [2000]). If there is no refusal, the limitations period does not begin to run (see id. at 342). Even if, arguendo, the clock began to run on March 6, 2009, petitioner brought the instant proceeding well within the four-month deadline set forth in CPLR 217(1).

It is true that petitioner's March 6, 2009 request was made more than four months after October 28, 2008. However, we exercise our discretion (see Matter of Densmore v Altmar-Parish-Williamstown Cent. School Dist., 265 AD2d 838, 839 [1999], lv denied 94 NY2d 758 [2000]) and determine that this proceeding is not barred by laches. If a petition and answer "can be construed as the necessary demand and refusal" (Matter of Triana v Board of Educ. of City School Dist. of City of N.Y., 47 AD3d 554, 557-558 [2008]), petitioner's pre-petition demand should not be deemed untimely.

We remand to permit respondents to answer (see CPLR 7804[f]; Matter of Nassau [*2]BOCES Cent. Council of Teachers v Board of Coop. Educ. Servs. of Nassau County, 63 NY2d 100, 103 [1984]).

The bold is mine.

An unqualified expert

Pellechia v Partner Aviation Enters., Inc., 2011 NY Slip Op 00496 (App. Div., 2nd 2011)

To the extent the plaintiff's claims against the defendant are not preempted by federal law, in opposition to the defendant's prima facie showing of entitlement to judgment as a matter of law, the plaintiff failed to raise a triable issue of fact (see Scoppettone v ADJ Holding Corp., 41 AD3d 693, 694; Hagan v P.C. Richards & Sons, Inc., 28 AD3d 422; Earle v Channel Home Ctr., 158 AD2d 507). The plaintiff's expert affidavit was properly rejected by the Supreme Court because the plaintiff never complied with any of the disclosure requirements of CPLR 3101(d)(1)(i), and only [*2]first identified his expert witness in opposition to the defendant's summary judgment motion, after the plaintiff filed the note of issue and certificate of readiness (see King v Gregruss Mgt. Corp., 57 AD3d 851, 852-853). Further, the expert failed to demonstrate that he was qualified to render an opinion (Hofmann v Toys R Us, NY Ltd. Partnership, 272 AD2d 296). Moreover, the expert's opinion which was speculative and conclusory, and was not based on accepted industry standards, was insufficient to raise a triable issue of fact (see Rabon-Willimack v Robert Mondavi Corp., 73 AD3d 1007, 1009; Pappas v Cherry Cr., Inc., 66 AD3d 658; Rivas-Chirino v Wildlife Conservation Socy., 64 AD3d 556).

When experts disagree:

Wexelbaum v Jean, 2011 NY Slip Op 00508 (App. Div., 2nd 2011)

"Summary judgment is not appropriate in a medical malpractice action where the parties adduce conflicting medical expert opinions. Such credibility issues can only be resolved by a jury" (Feinberg v Feit, 23 AD3d 517, 519 [citations omitted]; see Darwick v Paternoster, 56 AD3d 714, 715; Bjorke v Rubenstein, 53 AD3d 519, 520; Roca v Perel, 51 AD3d at 759). Accordingly, the appellants' motion for summary judgment was properly denied.

One day I'll remember to look at the cases the First Department cited to:

Bustos v Lenox Hill Hosp., 2011 NY Slip Op 00432 (App. Div., 1st 2011)

Under the particular circumstances presented, the affidavit of plaintiff's expert was properly considered by the court on renewal (see Mejia v Nanni, 307 AD2d 870, 871 [2003]; Garner v Latimer, 306 AD2d 209 [2003]; Tishman Constr. Corp. of N.Y. v City of New York, 280 AD2d 374, 376-377 [2001]). The affidavit was sufficient to raise triable issues of fact as to whether defendants' treatment of plaintiff before and during delivery departed from good and accepted standards of obstetric care (see Roques v Noble, 73 AD3d 204 [2010]; Frye v Montefiore Med. Ctr., 70 AD3d 15 [2009]).

Last one:

Alvarez v 1407 Broadway Real Estate LLC, 2011 NY Slip Op 00407 (App. Div., 1st 2011)

Plaintiff Luis Alvarez testified that a scaffold tipped over as he was climbing onto it. In opposition to this prima facie showing that a violation of Labor Law § 240(1) occurred and that it was a proximate cause of plaintiff's injuries (see Romanczuk v Metropolitan Ins. & Annuity Co., 72 AD3d 592 [2010]), defendants failed to raise an inference in support of their contention that the injured plaintiff's conduct was the sole proximate cause of the accident (see Torres v Monroe Coll., 12 AD3d 261 [2004]; Garcia v 1122 E. 180st St. Corp., 250 AD2d 550 [1998]). Their expert witness conceded that plaintiff's failure to lock the scaffold wheels before climbing onto the scaffold did not cause the scaffold to tip over. In any event, contributory negligence is not a defense to liability under Labor Law § 240(1) (see Crespo v Triad, Inc., 294 AD2d 145, 147 [2002]). While defendants' expert opined that plaintiff should have used a nearby A-frame ladder, rather than the ladder rungs of the scaffold, to gain access to the scaffold platform, defendants failed to submit any evidence that plaintiff knew or should have known that he was expected to use a ladder to climb onto the scaffold and "chose for no good reason not to do so" (see Cahill v Triborough Bridge & Tunnel Auth., 4 NY3d 35, 39-40 [2004]).

The bold is mine.

Voluntary Discontinuance: CPLR R. 3217

CPLR R. 3217 Voluntary discontinuance

New York Downtown Hosp. v Terry,2011 NY Slip Op 00253 (App. Div., 1st 2011)

ORDERED that the order is reversed, on the facts and in the exercise of discretion, with costs, and the appellants' motion pursuant to CPLR 3217(b), in effect, to enforce a stipulation pursuant to which the plaintiff agreed to voluntarily discontinue the action insofar as asserted against them is granted; and it is further,

ORDERED that the matter is remitted to the Supreme Court, Queens County, to convert the cross claims asserted by the defendants Saga House Condominium and Charles Greenthal Management against the appellants to a third-party action, and to amend the caption accordingly.

"In the absence of special circumstances, such as prejudice to a substantial right of the defendant, or other improper consequences, a motion for a voluntary discontinuance should be granted" (Expedite Video Conferencing Servs., Inc. v Botello, 67 AD3d 961, 961; see Tucker v Tucker, 55 NY2d 378, 383). Here, the Supreme Court improvidently exercised its discretion in denying the appellants' motion pursuant to CPLR 3217(b), in effect, to enforce a stipulation pursuant to which the plaintiff agreed to voluntarily discontinue the action insofar as asserted against them because there was no showing that the defendants Saga House Condominium and Charles Greenthal Management would be prejudiced by such discontinuance, since their cross claims will continue as a third-party action (see Expedite Video Conferencing Servs., Inc. v Botello, 67 AD3d at 961; Parraguirre v 27th St. Holding, LLC, 37 AD3d 793, 794; Citibank v Nagrotsky, 239 AD2d 456, 457).

Interesting Jurisdiction Type Stuff

CPLR R. 3211

GS Plasticos Limitada v Bureau Veritas, 2011 NY Slip Op 00272 (App. Div., 1st 2011)

In this action for tortious interference with contractual relations, plaintiff, a Brazilian company authorized to do business in New York, alleges that it lost a contract with a third party due to the issuance by defendant Bureau Veritas Consumer Products Services (BVCPS) of reports falsely concluding that plaintiff's products contained excessive amounts of arsenic. BVCPS, an indirect subsidiary of defendant Bureau Veritas (BV), provides testing and inspection services for consumer products, with testing facilities located in Buffalo, New York. BV is a French company that relinquished its authority to do business in New York before the commencement of this action.

As the motion court found, BV's surrender of its authority to do business in New York does not insulate it from the court's assertion of personal jurisdiction over it, because the liability in this case was "incurred by [BV] within this state before the filing of the certificate of surrender" (Business Corporation Law [BCL] § 1310[a][5]; see Antonana v Ore S.S. Corp., 144 F Supp 486, 491 [SD NY 1956]; Munn v Security Controls, 23 AD2d 813 [1965]). Contrary to BV's argument, neither the language of the statute nor the case law limits relief to New York residents (see Carlton Props. v 328 Props., 208 Misc 776, 778-779 [1955]; Antonana, 144 F Supp at 491; Green v Clark, 173 F Supp 233, 236-237 [SD NY 1959]).

However, the court erred in finding that it had jurisdiction pursuant to BCL § 1314(b)(3), based on the tortious conduct's having arisen out of the testing services performed in New York. For purposes of BCL § 1314(b)(3), the inquiry is not where the tortious conduct occurred but [*2]"[w]here the cause of action arose" (see id.; see also Gonzalez v Industrial Bank [of Cuba], 12 NY2d 33 [1962]; Hibernia Natl. Bank v Lacombe, 84 NY 367, 384 [1881]). Plaintiff's claim is one for interference with contractual relations. Although the faulty testing that led to the loss of the contract occurred in New York, plaintiff had no cause of action until the contract was actually lost, i.e., until it was cancelled, and that cancellation occurred in Brazil.

Nor can plaintiff establish jurisdiction pursuant to BCL § 1314(b)(3) or (b)(4), predicating jurisdiction under either of these subdivisions on BVCPS's activities as an agent or mere department of BV. The record does not support a finding that BVCPS's activities are "so complete that [it] is, in fact, merely a department of [BV]," i.e., it was "performing the same activities (i.e., doing all the business') that [BV] would have performed had it been doing or transacting business in New York" (see Porter v LSB Indus., 192 AD2d 205, 213, 214 [1993]).

Res Judicata

Zito v Fischbein Badillo Wagner Harding, 2011 NY Slip Op 00285 (App. Div., 1st 2011)

Plaintiff is collaterally estopped from seeking a declaration that he had cause to terminate his attorney-client relationship with defendant Nimkoff Rosenfeld & Schechter (the third cause of action) by this Court's order on a prior appeal, which implicitly determined that defendant was not discharged for cause, because in fact it was not discharged at all but voluntarily withdrew (see 58 AD3d 532 [2009]). Any other construction of the order would be contrary to law, since an attorney discharged for cause "has no right to compensation or to a retaining lien" (Teichner v W & J Holsteins, 64 NY2d 977, 979 [1985]). The issue of discharge that plaintiff raised in his legal malpractice action is identical to the issue addressed by this Court in the prior appeal of the original action. Indeed, during the prior appeal, plaintiff asked this Court to take judicial notice of the malpractice action he commenced in Nassau County, and fully briefed his malpractice claims.

The second cause of action, alleging legal malpractice, is barred under the doctrine of res [*2]judicata by the court's imprimatur of a retaining lien (see Kinberg v Garr, 28 AD3d 245 [2006]; Molinaro v Bedke, 281 AD2d 242 [2001]; Summit Solomon & Feldesman v Matalon, 216 AD2d 91 [1995], lv denied 86 NY2d 711 [1995]; see generally Blair v Bartlett, 75 NY 150, 154 [1878]).

The fifth cause of action, alleging a violation of Judiciary Law § 487, is also barred by res judicata since it is predicated upon the same conduct as underlies the legal malpractice claim, namely, defendant's "prior representation of" plaintiff (see Izko Sportswear Co., Inc. v Flaum, 63 AD3d 687, 688 [2009], lv denied
13 NY3d 708 [2009]; Jericho Group Ltd. v Midtown Dev., L.P., 67 AD3d 431, 432 [2009], lv denied 14 NY3d 712 [2010]).

Stuff I meant to post but didn’t feel like it at the time.

Bonik v Tarrabocchia, 2010 NY Slip Op 07878 (App. Div., 2nd 2010)

The plaintiff failed to rebut the defendant's sworn statement that he never received a copy of the order entered July 1, 2004, which, inter alia, scheduled a conference for September 29, 2004. The assertion of the plaintiff's attorney that she personally served that order upon the then- pro se defendant was not supported by a proper affidavit of service or other proof of service (see Lambert v Schreiber, 69 AD3d 904). A written statement prepared by the plaintiff's attorney on August 4, 2004, was neither sworn to before a notary public nor subscribed and affirmed to be true under the penalties of perjury and, thus, did not constitute competent evidence of service (see CPLR 2106; Moore v Tappen, 242 AD2d 526). Without notice of the conference, the defendant's "default" was a nullity, as was the remedy imposed by the Supreme Court as a consequence (see CPLR 5015[a][4]; Pelaez v Westchester Med. Ctr., 15 AD3d 375, 376; Tragni v Tragni, 21 AD3d 1084, 1085; cf. Hwang v Tam, 72 AD3d 741, 742). In this situation, vacatur of the default is required as a matter of law and due process, and no showing of a potentially meritorious defense is required (see Pelaez v Westchester Med. Ctr., 15 AD3d at 376; Kumer v Passafiume, 258 AD2d 625, 626). Consequently, the subsequent inquest, the judgment entered March 21, 2006, and the order dated July 16, 2007, were all nullities, and must be vacated. In addition, there was no competent proof that the plaintiff served the defendant with notice of the inquest, a copy of the judgment entered March 22, 2006, with notice of entry, or a copy of the order entered July 20, 2007, with notice of entry.

Rizzo v Kay, 2010 NY Slip Op 09493 (App. Div., 2nd 2010)

Furthermore, under the circumstances of this case, it was not error for the trial court to allow testimony on the issue of whether the appellant abandoned treatment of the plaintiff before fully completing her dental work, and, in effect, to conform the pleadings to the proof adduced at trial by submitting a claim of abandonment to the jury. "A trial court generally has broad discretion to deem the pleadings amended to conform to the evidence presented at the [trial], even absent a motion by a party, provided [that] there is no significant prejudice or surprise to the party opposing the amendment" (Matter of Allstate Ins. Co. v Joseph, 35 AD3d 730, 731; see CPLR 3025[c]; A-1 Check Cashing Serv. v Goodman, 148 AD2d 482). Here, the appellant was not prejudiced or surprised by the admission of evidence on the issue of abandonment and the submission of this issue to the jury, since the issue was explored, and relevant evidence obtained, during discovery (see Alomia v New York City Tr. Auth., 292 AD2d 403, 406; Diaz v New York City Health & Hosps. Corp., 289 AD2d 365, 366).

It was also proper for the trial court to dismiss the appellant's cross claim against the defendant Joseph Maniscalco. The plaintiff failed to present any expert evidence that Dr. Maniscalco departed from good and accepted standards of dental practice, and therefore agreed to withdraw her dental malpractice claim against Dr. Maniscalco at the close of her case. While the appellant opposed Dr. Maniscalco's motion to dismiss the cross claim against him upon the ground that there was a factual dispute as to whether Dr. Maniscalco was an independent contractor who could be held liable for his own acts of malpractice, the appellant's expert witness disclosure statement failed to identify any departures from good and accepted standards of dental practice which Dr. Maniscalco may have committed. Under these circumstances, the trial court providently exercised its discretion in ruling that the appellant would be precluded from offering expert testimony as to whether Dr. Maniscalco committed any acts of dental malpractice (see CPLR 3101[d][1][i]; Lucian v Schwartz, 55 AD3d 687, 688; Parlante v Cavallero, 73 AD3d 1001; Schwartzberg v Kingsbridge Hgts. Care Ctr., Inc., 28 AD3d 463, 464), and in concluding that absent such expert testimony, the appellant could not establish a prima facie case of dental malpractice against Dr. Maniscalco, and therefore could not prevail upon his cross claim (see Perricone-Bernovich v Gentle Dental, 60 AD3d 744, 745; Sohn v Sand, 180 AD2d 789, 790.

Comice v Justin's Rest., 2010 NY Slip Op 07884 (App. Div., 2nd 2010)

The Supreme Court properly denied that branch of the plaintiff's motion which was pursuant to CPLR 1003 for leave to amend the summons and complaint to add Andre Suite as a defendant. The statute of limitations expired and the plaintiff failed to demonstrate that the relation-back doctrine was applicable (see CPLR 203[f]; Buran v Coupal, 87 NY2d 173). In order for claims asserted against a new defendant to relate back to the date the claims were filed against an original defendant, the plaintiff must establish, inter alia, that the new party knew or should have known that, but for a mistake by the plaintiff as to the identity of the proper parties, the action would have been brought against that party as well (see Buran v Coupal, 87 NY2d at 178; Arsell v Mass One LLC, 73 AD3d 668, 669; Boodoo v Albee Dental Care, 67 AD3d 717, 718). Here, the plaintiff failed to establish that Suite knew or should have known that, but for a mistake as to the identity of the proper parties, this action would have been brought against him as well (see Boodoo v Albee Dental Care, 67 AD3d at 718; Marino v Westchester Med. Group, P.C., 50 AD3d 861; Yovane v White Plains Hosp. Ctr., 228 AD2d 436, 437; see also Bumpus v New York City Tr. Auth., 66 AD3d 26, 34-35).

Furthermore, the Supreme Court properly denied that branch of the plaintiff's motion which was, in effect, pursuant to CPLR 1024 to name Andre Suite as a defendant in lieu of "John Doe." In order to employ the procedural mechanism made available by CPLR 1024, a plaintiff must show that he or she made timely efforts to identify the correct party before the statute of limitations expired (see Bumpus v New York City Tr. Auth., 66 AD3d at 29-30; Harris v North Shore Univ. Hosp. at Syosset, 16 AD3d 549, 550; Justin v Orshan, 14 AD3d 492, 492-493; Scoma v Doe, 2 AD3d 432, 433; Porter v Kingsbrook OB/GYN Assoc., 209 AD2d 497). Here, the plaintiff failed to make such a showing.

Sanchez v Avuben Realty LLC, 2010 NY Slip Op 08780 (App. Div., 1st 2010)

An application brought pursuant to CPLR 5015 to be relieved from a judgment or order entered on default requires a showing of a reasonable excuse and legal merit to the defense asserted (see Crespo v A.D.A. Mgt., 292 AD2d 5, 9 [2002]). While the failure to keep a current address with the Secretary of State is generally not a reasonable excuse for default under CPLR 5015(a)(1) (id. at 9-10), where a court finds that a defendant failed to "personally receive notice of the summons in time to defend and has a meritorious defense," relief from a default may be permitted (CPLR 317; see Eugene Di Lorenzo, Inc. v A.C. Dutton Lbr. Co., 67 NY2d 138, 142 [1986]).

Here, notwithstanding the Secretary of State's maintenance of the wrong corporate address, the evidence of record demonstrates that defendant did receive notice of the summons in time to interpose a defense, and inexplicably failed to do so. It is undisputed that six months after the complaint's filing, counsel for defendant's insurer contacted plaintiff's counsel to discuss settlement, at which time he was informed of the then-pending motion for default judgment. The very fact that settlement options were discussed at this time evidences that defendant was aware of plaintiff's action. Moreover, vacatur of a default judgment is not warranted merely because the default was occasioned by lapses on the part of an insurance carrier (see Klein v Actors & Directors Lab, 95 AD2d 757 [1983], lv dismissed 60 NY2d 559 [1983];Lemberger v Congregation Yetev Lev D'Satmar, Inc., 33 AD3d 671, 672 [2006]). The evidence of record also indicates that five months after filing of the summons and complaint, copies thereof were delivered to an undisputably valid address for defendant, as was notice of entry of the Supreme Court's March 26, 2007 order granting plaintiff's motion for default judgment and [*2]noticing an inquest as to damages. Still defendant took no action until approximately two-and-a-half years after the complaint's filing, when plaintiff attempted to collect on the Supreme Court's judgment.

Defendant failed to establish entitlement to vacatur of the default judgment under CPLR 5015(a)(3) due to an alleged fraud perpetrated by plaintiff in support of his complaint, as the affidavit it submitted in support of this claim was both conclusory and recounted hearsay.

Gibbs v St. Barnabas Hosp., 2010 NY Slip Op 09198 (Ct. App. 2010)

Under CPLR 3042 (d), a court may invoke the relief set forth in CPLR 3126 when a "party served with a demand for a bill of particulars willfully fails to provide particulars which the court finds ought to have been provided pursuant to this rule." CPLR 3126, in turn, governs discovery penalties and applies where a party "refuses to obey an order for disclosure or wilfully fails to disclose information which the court finds ought to have been disclosed." The statute contains a list of nonexclusive sanctions and further permits courts to fashion orders "as are just." CPLR 3126 therefore broadly empowers a trial court to craft a conditional order — an order "that grants the motion and imposes the sanction 'unless' within a specified time the resisting party submits to the disclosure" (Connors, Practice Commentaries, McKinney's Cons Laws of NY, Book 7B, CPLR C3126:10 ["The conditional order is in fact the most popular disposition under CPLR 3126"]; see also CPLR 3042 [d]).

The situation that developed in this case is, unfortunately, a scenario that we have seen before. In Fiore v Galang (64 NY2d 999 [1985], affg 105 AD2d 970 [3d Dept 1984]), a medical malpractice action, the trial court granted a 30-day conditional order of preclusion directing plaintiffs to serve a bill of particulars on the defendant hospital. Following plaintiffs' lack of compliance with the order, the hospital moved for summary judgment dismissing the complaint. The trial court denied the motion on the condition that plaintiffs serve a bill of particulars and pay $415 to the hospital's attorneys ^[FN3]. On appeal, the Appellate Division reversed and dismissed the complaint, concluding that the trial court erred in excusing the default without requiring plaintiff to offer both a reasonable excuse and an affidavit of merit. We affirmed, explaining that "absent an affidavit of merits it was error, as a matter of law, not to grant defendant Hospital's motion for summary judgment" (id. at 1000 [emphasis added]).

***

In reaching this conclusion, we reiterate that "[l]itigation cannot be conducted efficiently if deadlines are not taken seriously, and we make clear again, as we have several times before, that disregard of deadlines should not and will not be tolerated" (Andrea v Arnone, Hedin, Casker, Kennedy & Drake, Architects & Landscape Architects, P.C. [Habiterra Assoc.], 5 NY3d 514, 521 [2005]; see also Wilson v Galicia Contr. & Restoration Corp., 10 NY3d 827, 830 [2008]; Miceli v State Farm Mut. Auto. Ins. Co., 3 NY3d 725, 726-727 [2004]; Brill, 2 NY3d at 652-653; Kihl, 94 NY2d at 123).

2309(c) still dead

Hall v Elrac, Inc., 2010 NY Slip Op 08864 (App. Div., 1st 2010)

We find that the IAS court properly considered the affidavit of defendant Elrac's senior account manager in the damage unit in concluding that defendant's disposal of the vehicle in question was not done in bad faith. Initially, plaintiff's claim that the affidavit was not in admissible form because it was signed outside New York State but notarized by a New York notary, without providing a certificate of conformity as required by CPLR 2309(c) and Real Property Law § 299-a is unpreserved (see Matapos Tech. Ltd. v Compania Andina de Comercio Ltda, 68 AD3d 672, 673 [2009]; P.T. Bank Cent. Asia v Chinese Am. Bank, 229 AD2d 224, 229 [1997]). In any event, as long as the oath is duly given, authentication of the oathgiver's authority can be secured later, and given nunc pro tunc effect if necessary (Matapos Tech. Ltd., 68 AD3d at 673).

The affidavit was based on the affiant's personal knowledge and his review of the documents, including wholesale purchase order/bill of sale and the check received by defendant in payment for the wrecked vehicle, sold as salvage, which established the date of transfer. This is not a summary judgment motion, where the movant's evidence must be in admissible form, and even a summary judgment motion affords some flexibility to the party opposing the motion (see Friends of Animals v Associated Fur Mfrs., 46 NY2d 1065, 1067-1068 [1979]).

Late Papers. CPLR 2214(b)

CPLR 2214(b)

Prato v Arzt, 2010 NY Slip Op 09550 (App. Div., 1st 2010)

Defendant's argument that the court improperly declined to reject plaintiff's opposition to his motion as untimely pursuant to CPLR 2214(b) is misguided. The issue was addressed and resolved by the motion court, which granted defendant's request for an opportunity to file a reply. More importantly, defendant has not shown that he suffered any prejudice as a result of the court's acceptance of plaintiff's late opposition papers (see Dinnocenzo v Jordache Enters., 213 AD2d 219 [1995]).