[App Div 1st Dept]

CPLR R. 2101 English?

CPLR R. 2101 Form of papers

CPLR R. 3212(f)

Monteleone v Jung Pyo Hong, 2010 NY Slip Op 09484 (App. Div., 2nd 2010)

In opposition, the defendant failed to submit any evidence in admissible form sufficient to raise a triable issue of fact with respect to the issue of liability (see Pitt v Alpert, 51 AD3d at 651; Ramos v Triboro Coach Corp., 31 AD3d 625; Iqbal v Petrov, 9 AD3d 416). The defendant failed to proffer any excuse for his failure to submit his affidavit, translated from Korean to English by his wife, in admissible form (seeCPLR 2101[b]; Chemical Bank v PIC Motors Corp., 58 NY2d 1023, 1026; Martinez v 123-16 Liberty Ave. Realty Corp, 47 AD3d 901, 902; Allstate Ins. Co. v Keil, 268 AD2d 545; Schiffren v Kramer, 225 AD2d 757) and, under the circumstances of this case, the Supreme Court correctly declined to consider the translated affidavit.

Furthermore, in view of the fact that the defendant had personal knowledge of the relevant facts underlying the accident, his purported need to conduct discovery did not warrant denial of the motion (see Emil Norsic & Son, Inc. v L.P. Transp., Inc., 30 AD3d 368, 369;Rainford v Sung S. Han, 18 AD3d 638; Niyazov v Bradford, 13 AD3d 501).

National Puerto Rican Day Parade, Inc. v Casa Publs., Inc., 2010 NY Slip Op 09387 (App. Div., 1st 2010)

Casa sought dismissal of the complaint under CPLR 2101(b), arguing that plaintiffs failed to attach an English translation for each article in its entirety, and that the translator affidavits were insufficient because the affidavits were not signed contemporaneously with the verified complaint, because they did not include an itemized list of the translators' qualifications, and because the translators' names were not printed below the signature line. Additionally, Feliciano sought to dismiss the eleventh and thirteenth causes of action, arguing that by merely providing [*2]information to Casa he did not cause the articles to be published. Plaintiffs submitted an attorney affidavit in opposition to Feliciano's motion to dismiss, stating that they would be able to show that Feliciano authorized Casa to recommunicate his statements, and that he also paid Casa to publish his "open letter," which discusses individual members associated with NPRDP.

A statute should be interpreted "so as to give effect to the plain meaning of the words used" (Doctors Council v New York City Employees' Retirement Sys., 71 NY2d 669, 675 [1988]). Under CPLR 2101(b) each paper served or filed shall be in the English language and where an affidavit or exhibit annexed to a paper served or filed is in a foreign language, it shall be accompanied by an English translation and an affidavit by the translator stating his or her qualifications and that the translation is accurate. Plaintiffs provided sufficient translator affidavits because both affidavits state that the translators are "qualified professional[s]," competent in both Spanish and English, and that the translations are an "accurate and complete rendering of the content of the original document." (see Polish Am. Immigration Relief Comm. v Relax, 172 AD2d 374 [1991]).

The certification that the translation was done by a professional translator competent in both languages is sufficient, especially in this particular case. The statute does not require that the translator affidavit include an "itemized" list of qualifications. Moreover, Casa had adequate notice and it shows no prejudice from the lack of an itemized list of qualifications. Casa does not allege that it — the publisher, editor and writer for a Spanish language newspaper — could not read and understand the articles in the language in which they were written, nor is there any claim that the translations are inaccurate.

The statute also does not require that the translator's affidavit list what was translated. Nor do the words of the statute mandate a "complete translation" as argued by Casa. Moreover, it is perfectly apparent that the articles themselves were the translated documents because they were annexed to the translators' affidavits and submitted with the complaint. Indeed, each of the 19 articles is individually identified within the body of the complaint by the publication date, author's name, and exhibit letter. These identifying characteristics can be matched directly to

CPLR R. 2221: motion not required.

CPLR R. 2221

Mazinov v Rella, 2010 NY Slip Op 09479 (App. Div., 2nd 2010)

A motion for leave to reargue "shall be based upon matters of fact or law allegedly overlooked or misapprehended by the court in determining the prior motion, but shall not include any matters of fact not offered on the prior motion" (CPLR 2221[d][2]). A motion for leave to reargue "is not designed to provide an unsuccessful party with successive opportunities to reargue issues previously decided, or to present arguments different from those originally presented" (McGill v Goldman, 261 AD2d 593, 594; see V. Veeraswamy Realty v Yenom Corp., 71 AD3d 874; Woody's Lbr. Co., Inc. v Jayram Realty Corp., 30 AD3d 590; Gellert & Rodner v Gem Community Mgt., Inc., 20 AD3d 388; Pryor v Commonwealth Land Tit. Ins. Co., 17 AD3d 434; Amato v Lord & Taylor, Inc., 10 AD3d 374). Here, the Supreme Court improvidently exercised its discretion in granting the plaintiffs' motion for leave to reargue since they failed to show that the Supreme Court overlooked or misapprehended the relevant facts or misapplied any controlling principle of law and improperly presented arguments not previously advanced (see CPLR 2221[d][2]).

Rostant v Swersky, 2010 NY Slip Op 08987 (App. Div., 1st 2010)

Plaintiff was not precluded from moving for reargument before the order on the first decision was entered. "A court has the inherent power, sua sponte or on motion of a party, to reconsider and vacate its prior decision before issuing an order thereon" (Hulett v Niagara Mohawk Power Corp., 1 AD3d 999, 1003 [2003]; Manocherian v Lenox Hill Hosp., 229 AD2d 197, 202-203 [1997], lv denied 90 NY2d 835 [1997]). Nor did plaintiff's failure to submit all the original motion papers on her reargument motion render the latter procedurally defective. CPLR 2221 does not specify the papers that must be submitted on a motion for reargument, and the decision whether to entertain reargument is committed to the sound discretion of the court (William P. Pahl Equip. Corp. v Kassis, 182 AD2d 22, 27 [1992], lv dismissed in part, denied in part, 80 NY2d 1005 [1992]). Moreover, the motion court gave all parties the opportunity to supplement the record with the underlying papers, and afforded defendants the opportunity to present any further argument warranted by the additional submissions. Thus, defendants were not prejudiced by the deficiencies in plaintiff's submissions on reargument or by the procedures adopted by the court (see Addison v New York Presbyt. Hosp./Columbia Univ. Med. Ctr., 52 AD3d 269 [2008]).

CPLR R. 4518

CPLR R. 4518 Business records

Kamolov v BIA Group, LLC, 2010 NY Slip Op 09890 (App. Div., 2nd 2010)

The Supreme Court properly denied the plaintiff's motion for summary judgment on the issue of liability on his cause of action pursuant to Labor Law § 240(1). In opposition to the plaintiff's prima facie showing of entitlement to judgment as a matter of law on that cause of action, the defendants raised a triable issue of fact as to the manner in which the accident occurred (see e.g. Kumar v Stahlunt Assoc., 3 AD3d 330; Park v Ferragamo, 282 AD2d 588; Avendano v Sazerac, Inc., 248 AD2d 340, 341). In this regard, the plaintiff failed to demonstrate that relevant portions of the medical records submitted by the defendants in opposition to his motion constituted inadmissible hearsay. The statements in the records regarding the manner in which the accident occurred were germane to the diagnosis and/or treatment of the plaintiff, and were properly considered as business records (see Harrison v Bailey,AD3d, 2010 NY Slip Op 09221 [2d Dept 2010];see also Rodriguez v Piccone, 5 AD3d 757, 758; Wright v New York City Hous. Auth., 273 AD2d 378, 379; Eitner v 119 W. 71st St. Owners Corp., 253 AD2d 641, 641-642). The plaintiff's remaining challenges to the defendants' reliance on the business records exception to the hearsay rule were not raised in the Supreme Court (see Buckley v J.A. Jones/GMO, 38 AD3d 461, 463) and, in any event, are without merit. Furthermore, the challenged statements set forth in the ambulance report also were admissible on the independent ground that they constituted admissions by the plaintiff, since they are inconsistent with his current account of the accident and the statements were satisfactorily connected to him (see generally Preldakaj v Alps Realty of NY Corp., 69 AD3d 455, 456-457).

Matter of Carothers v GEICO Indem. Co., 2010 NY Slip Op 09256 (App. Div., 2nd 2010)

The testimony of an employee of the company that handled the plaintiff's medical billing was insufficient to lay a foundation for the admission of the claim forms under the business records exception of the hearsay rule (see Art of Healing Medicine, P.C. v Travelers Home & Mar. Ins. Co., 55 AD3d 644). Such records were inadmissible because the billing company did not create the records and there was no showing that its employee was familiar with the particular record- keeping procedures of the plaintiff (see West Val. Fire Dist. No. 1 v Village of Springville, 294 AD2d 949, 950). Further, although a proper foundation can be established by a recipient of records who does not have personal knowledge of the maker's business practices and procedures, there must still be a showing that the recipient either incorporated the records into its own records or relied upon the records in its day-to-day operations (see People v A & S DiSalvo, Co., 284 AD2d 547, 548; Plymouth Rock Fuel Corp. v Leucadia, Inc., 117 AD2d 727). Here, the billing company's mere printing and mailing of the documents to the insurer did not establish that the documents were incorporated into its records or that it relied upon the records in its regular course of business (see Lodato v Greyhawk N. Am., LLC, 39 AD3d 494,495). Since the subject documents were inadmissible, the plaintiff failed to establish its prima facie case, and the Appellate Term properly reversed the judgment in the plaintiff's favor

Harrison v Bailey, 2010 NY Slip Op 09221 (App. Div., 2nd 2010)

The Supreme Court erred in granting the plaintiff's motion for summary judgment on the issue of liability. While the plaintiff established his prima facie entitlement to summary judgment on the issue of liability (see generally Winegrad v New York Univ. Med. Ctr.,64 NY2d 851, 852; Zuckerman v City of New York, 49 NY2d 557, 562), the defendants' proffered accident report, which contained a statement from Bailey that the plaintiff had crossed into Bailey's lane, causing the accident, raised a triable issue of fact (see Alvarez v Prospect Hosp., 68 NY2d 320, 324; Bradley v Ibex Constr., LLC, 54 AD3d 626, 627). Contrary to the plaintiff's contention, the accident report was admissible evidence under the business record exception to the rule against hearsay. While an unsworn accident report, by itself, does not constitute evidence in admissible form sufficient to defeat a motion for summary judgment (see Morgan v Hachmann, 9 AD3d 400, 401; Hegy v Coller, 262 AD2d 606), it may be admissible in evidence if it qualifies as a business record (see Bradley v IBEX Constr., LLC, 54 AD3d at 627; cf. Bendik v Dybowski, 227 AD2d 228, 229). Here, the affidavit of Atlantic's Safety Manager established the elements required for the admissibility of the accident report as a business record pursuant to CPLR 4518(a), namely, that the report (1) was required of Bailey as a condition of his employment, (2) was made at or about the time of the accident, and (3) was maintained by Atlantic in the regular course of its business (see Bradley v IBEX Constr., LLC, 54 AD3d at 627; Galanek v New York City Tr. Auth., 53 AD2d 586;Bishin v New York Cent. R.R. Co., 20 AD2d 921). Once admissible, any challenges to the report extend only to the weight it will be given (see CPLR 4518[a]). Here, the order dated August 1, 2008, only precluded Bailey from "testifying at the trial of the action." Such language cannot be read as precluding Bailey from opposing a motion for summary judgment through the submission of documentary evidence. Moreover, the language of the order of preclusion does not prohibit Atlantic, as Bailey's former employer, from proffering any form of evidence at any time in the action. Indeed, the nature and degree of the penalty to be imposed pursuant to CPLR 3126 is a matter within the discretion of the court (see Jaffe v Hubbard, 299 AD2d 395, 396). Had the Supreme Court intended to preclude Bailey from proffering any forms of evidence, as the plaintiff maintains, it could have done so in the order dated August 1, 2008, by specifically precluding all forms of evidence or by striking Bailey's answer outright under CPLR 3126(3).

J.D.M. Imports Co., Inc. v Hartstein, 2010 NY Slip Op 09186 (App. Div., 1st 2010)

The court correctly found that plaintiff's computer database was a business record (see Ed Guth Realty v Gingold, 34 NY2d 440, 451 [1974]), and then properly admitted a print-out from the database (see People v Weinberg, 183 AD2d 932, 933 [1992], lv denied 80 NY2d 977 [1992]; see also Guth, 34 NY2d at 452).

Expert must assist and be qualified

Green v Silver, 2010 NY Slip Op 09887 (App. Div., 2nd 2010)

The Supreme Court providently exercised its discretion in precluding the defendant's expert from testifying at the hearing, since the matter about which he would have testified would not have assisted the court in making its determination (see generally Kulak v Nationwide Mut. Ins. Co., 40 NY2d 140).

Riccio v NHT Owners, LLC, 2010 NY Slip Op 09492 (App. Div., 2nd 2010)

"It is within the Supreme Court's sound discretion to determine whether a particular witness is qualified to testify as an expert, and its determination will not be disturbed in the absence of serious mistake, an error of law, or an improvident exercise of discretion" (de Hernandez v Lutheran Med. Ctr., 46 AD3d 517, 517-518; see Werner v Sun Oil Co., 65 NY2d 839; Meiselman v Crown Hgts. Hosp., 285 NY 389, 398; Steinbuch v Stern, 2 AD3d 709, 710; Pignataro v Galarzia, 303 AD2d 667; McLamb v Metropolitan Suburban Bus Auth., 139 AD2d 572). "An expert is qualified to proffer an opinion if he or she possesses the requisite skill, training, education, knowledge, or experience to render a reliable opinion" (de Hernandez v Lutheran Med. Ctr., 46 AD3d at 518; see Matott v Ward, 48 NY2d 455, 459;Pignataro v Galarzia, 303 AD2d at 668; Hofmann v Toys R Us, NY Ltd. Partnership, 272 AD2d 296). "The competence of an expert in a particular subject may derive from long observation and real world experience, and is not dependent upon formal training or attainment of an academic degree in the subject" (Miele v American Tobacco Co., 2 AD3d 799, 802; see Caprara v Chrysler Corp., 52 NY2d 114, 121;McLamb v Metropolitan Suburban Bus Auth., 139 AD2d at 573).

Here, the plaintiff's expert demonstrated that she possessed the requisite skill, training, education, knowledge, and experience to render a reliable opinion as to whether the ladder provided to the plaintiff was appropriate for the repair he was performing (see Caprara v Chrysler Corp., 52 NY2d at 121; Brown v Concord Nurseries, 53 AD3d 1067, 1068; Miele v American Tobacco Co., 2 AD3d at 802). The defendants' objections to the expert's qualifications should not have precluded the admission of her testimony, but rather, went to the weight to be accorded to it by a jury (see Ochoa v Jacobson Div. of Textron, Inc., 16 AD3d 393; Miele v American Tobacco Co., 2 AD3d at 802;McLamb v Metropolitan Suburban Bus Auth., 139 AD2d at 573). Accordingly, the Supreme Court improvidently exercised its discretion in, in effect, granting the defendants' application to preclude the testimony of the plaintiff's expert on the ground that she was not qualified to testify. Under the circumstances of this case, a new trial is warranted.

Leffler v Feld, 2010 NY Slip Op 09073 (App. Div., 1st 2010)

The court properly refused to permit plaintiff to call a previously undisclosed coworker as a rebuttal witness, as the witness could have been called on plaintiff's direct case (cf. Feldsberg v Nitschke, 49 NY2d 636, 643 [1980]; see Hutchinson v Shaheen, 55 AD2d 833, 834 [1976]). Moreover, since the rebuttal witness would not have testified to what plaintiff told defendant about her symptoms, no substantial right was prejudiced by the preclusion of the witness's testimony (see Frias v Fanning, 119 AD2d 796, 797 [1986]).

Finally, the testimony of plaintiff's handwriting expert was properly precluded because it "was of questionable probative value and likely to involve distracting collateral issues" (Heraud v Weissman, 276 AD2d 376, 377 [2000], lv denied, 96 NY2d 705 [2001]). The pre-deliberations substitution of an alternate juror for a juror who was late and could not be contacted was also a proper exercise of discretion (see People v Jeanty, 94 NY2d 507, 517 [2000]; People v Ballard, 51 AD3d 1034, 1035-1036 [2008], lv denied 11 NY3d 734 [2008]).

CPLR R. 3016(b) with particularity

CPLR R. 3016 Particularity in specific actions

Nicosia v Board of Mgrs. of the Weber House Condominium, 2010 NY Slip Op 07254 (App. Div., 1st 2010)

Plaintiff's fraud claim should be dismissed for the additional reason that it is not pleaded with particularity (CPLR 3016[b]). A cause of action for fraud requires plaintiff to plead: (1) a material misrepresentation of a fact, (2) knowledge of its falsity, (3) an intent to induce reliance, (4) justifiable reliance and (5) damages (Eurycleia Partners, LP v Seward & Kissel, LLP, 12 NY3d 553, 559 [2009]). Plaintiff's complaint is bare-bones. Among other deficiencies, plaintiff does not allege how he learned that the Board was purporting to exercise its right of first refusal. Plaintiff attaches an August 6, 2007 letter that the Board sent to Axminster's attorney stating that the Board was electing to exercise its right of first refusal. However, plaintiff does not articulate who communicated this information to him or when he received this information. Thus, we are left to guess that somehow Axminster's attorney communicated the Board's decision to plaintiff at some point. Plaintiff also does not explain how he relied to his detriment on the Board's alleged exercise of its right of first refusal. While we can suppose that plaintiff's reliance somehow involved his refraining from taking steps to enforce the closing, it is not for us to interject our supposition into plaintiff's pleading. Nor is it our place to explain what damages might have flowed from the failure to close. The dissent points to allegations from the tortious interference cause of action where plaintiff alleges that because of defendants' wrongful conduct, "plaintiff's contract with Axminster to purchase the Unit was not consummated." However, this language does not appear in plaintiff's cause of action for fraud. And, even if it did, this language would hardly satisfy the CPLR 3016(b) requirement that the facts constituting the fraud "be stated in detail." Certainly, what plaintiff did or did not do after learning that the Board was exercising its right of first refusal, and what damages flowed from that action or inaction, are within plaintiff's purview.

While the dissent may be correct that plaintiff can prevail on his fraud claim "if Axminster reasonably relied on the misrepresentation in selling the unit to Kesy," plaintiff has not alleged this. Rather, plaintiff's allegations concerning Axminster are more nefarious — that Axminster directly breached its duties to plaintiff by failing to perform "its required due diligence to determine if the sale to KESY was in accordance with the By-laws."

Thus, the facts of this case could very well eventually support a fraud claim. However, plaintiff has not pleaded these facts sufficiently and, unlike the dissent, we decline to speculate and infer the facts for him, especially given our liberal rules regarding amendment of pleadings.

The bold is mine.

Best Evidence / Written Agreements / Electronic Signatures

Eccleston Hall v Paez, 2010 NY Slip Op 07142 (App. Div., 2nd 2010)

" The best evidence of what parties to a written agreement intend is what they say in their writing'" (Greenfield v Philles Records, 98 NY2d 562, 569, quoting Slamow v Del Col, 79 NY2d 1016, 1018). Further, "[w]hen the terms of a written contract are clear and unambiguous, the intent of the parties must be found within the four corners of the contract, giving practical interpretation to the language employed and the parties' reasonable expectations" (Franklin Apt. Assocs., Inc. v Westbrook Tenants Corp., 43 AD3d 860, 861 [internal citations omitted]; see Gutierrez v State of New York, 58 AD3d 805, 807). The rule that "a written agreement that is complete, clear and unambiguous on its face must be enforced according to the plain meaning of its terms" (Greenfield v Philles Records, 98 NY2d at 569) is of special import in the context of real property transactions where commercial certainty is important and the contract was negotiated between sophisticated counseled parties negotiating at arms length (see M & R Rockaway v SK Rockaway Real Estate Co., 74 AD3d 759).

Torres v D'Alesso, 2010 NY Slip Op 07127 (App. Div., 1st 2010)

When both parties to a real estate sales contract have executed and delivered to the other party a completely integrated written contract containing the specific language that any prior oral agreements or representations are merged into the writing, and that "neither party rel[ies] upon any statement made by anyone else that is not set forth in this contract," such a contract may not be avoided by a claim of a prior orally agreed- upon condition precedent to the effectiveness of the contract. The rule that the parties to a written contract may orally agree to a condition precedent to the effectiveness of the contract, so that a party must be permitted to prove by parol evidence a claim that the contract never became effective because the condition precedent never occurred (see Hicks v Bush, 10 NY2d 488, 491 [1962]), is not applicable under circumstances such as those presented here. Even if the rule were applicable here, the purported condition would be unenforceable because it contradicts terms of the writing. And, the words used to create the condition lack the "clear language showing that the parties intended to make it a condition" (Unigard Sec. Ins. Co. v North Riv. Ins. Co., 79 NY2d 576, 581 [1992]) that is necessary to validly create a condition precedent to the effectiveness of the contract.

Naldi v Grunberg, 2010 NY Slip Op 07079 (App. Div., 1st 2010)

At the outset of our analysis, we reject defendant's argument that an e-mail can never constitute a writing that satisfies the statute of frauds of GOL § 5-703 ("Conveyances and [*5]contracts concerning real property required to be in writing")^[FN2]. Again, this Court has held in other contexts that e-mails may satisfy the statute of frauds (see Williamson v Delsener, 59 AD3d 291 [2009] [stipulation settling litigation]; Stevens v Publicis, S.A., 50 AD3d 253, 254-255 [2008], lv dismissed 10 NY3d 930 [2008] [modification of written agreement barring oral changes], citing Rosenfeld v Zerneck, 4 Misc 3d 193 [Sup Ct, Kings County 2004] [stating, in dicta, that an e-mail reflecting an agreement to sell real property may satisfy the statute of frauds, although the e-mail at issue failed to state all essential terms]; see also Bazak Intl. Corp. v Tarrant Apparel Group, 378 F Supp 2d 377, 383-386 [SD NY 2005] [holding that e-mail satisfied the requirement of a "writing in confirmation of the contract" under New York UCC § 2-201(2)])^[FN3]. We reaffirm the holdings of Williamson and Stevens.

“CPLR 3216 ‘is extremely forgiving of litigation delay'”

CPLR R. 3216 Want of prosecution

Umeze v Fidelis Care N.Y., 2010 NY Slip Op 06603 (App. Div., 1st 2010)

"When served with a 90-day demand pursuant to CPLR 3216, it is incumbent upon a plaintiff to comply with the demand by filing a note of issue or by moving, before the default date, to either vacate the notice or extend the 90-day period" (Primiano v Ginsberg, 55 AD3d 709, 709 [2008]; see Serby v Long Is. Jewish Med. Ctr., 34 AD3d 441 [2006], lv denied 8 NY3d 805 [2007]). Here, having done neither, to avoid dismissal, this pro se plaintiff was required to show both a "justifiable excuse for the delay and a good and meritorious cause of action" (CPLR 3216[e]). Furthermore, CPLR 3216 "is extremely forgiving of litigation delay" (Baczkowski v Collins Constr. Co., 89 NY2d 499, 503 [1997]), and "[t]he nature and degree of the penalty to be imposed on a motion to dismiss for want of prosecution is a matter of discretion with the court" (Espinoza v 373-381 Park Ave. S., LLC, 68 AD3d 532, 533 [2009]).

Based on the foregoing principles and under the circumstances presented, the motion court did not abuse its discretion in granting the motion to dismiss conditioned on plaintiff resuming prosecution of the action within 10 days of service of the order with notice of entry. Plaintiff's attempts to obtain counsel twice during this litigation indicate that there was no intent to abandon the action (see e.g. Di Simone v Good Samaritan Hosp., 100 NY2d 632, 633-634 [2003]). This includes that, in response to the 90-day notice, plaintiff contacted an attorney who, in a September 15, 2008 letter, stated that his firm was considering substituting for the "pro se plaintiff" and requested an additional 30 days to decide whether to take the case. Thus, plaintiff clearly met with an attorney in an attempt to resume this litigation. There is also evidence in the record that counsel for the defense refused to call back plaintiff's initial counsel. Contrary to defendants' contention, the "complaint, verified by plaintiff on the basis of personal knowledge and which detailed [the defendants'] acts of negligence, was a sufficient affidavit of merits" (Salch v Paratore, 60 NY2d 851, 852-53 [1983]).

All concur except Gonzalez, P.J. and Catterson, J. who dissent in a [*2]memorandum by Catterson, J. as follows:

CATTERSON, J. (dissenting)

I must respectfully dissent because in my opinion, the motion court improvidently exercised its discretion by allowing the plaintiff additional time after he failed to file a note of issue in response to the defendants' 90-day demand, and failed to proffer a justifiable excuse for not so doing. Specifically, I disagree with the majority's reliance on the Court of Appeals' observation in Baczkowski v. Collins Constr. Co. (89 N.Y.2d 499, 503, 655 N.Y.S.2d 848, 850, 678 N.E.2d 460, 462 (1997)) that CPLR 3216 is "extremely forgiving of litigation delay." The Court's observation is made upon the recitation of precisely those statutory requirements – filing the note of issue or tendering a justifiable excuse for not so doing — with which the plaintiff in this case failed to comply.

Make sure to click on the case to read the remainder of the dissent. The bold is mine.

The NYLJ has something special for you.

My week started off with the littlest child breaking my glasses into two. As you can see, I fixed it with a mix of crazy glue and sewing thread. Now when I wear them I look like Sloth and it makes my vision all crazy like. And today, while I was walking home I walked past an electronics store with a Pickachu statute on the outside and I swear, it looked like it was flipping me the bird. I blame that on my lack of sleep. What I can't explain is that for second, I was genuinely pissed at Pickachu.¹

And onto the law. Yesterday's Law Journal had one of those special fancy pants pull out sections: Court of Appeals and Appellate Practice. One of the sections, indeed, the most important section is, Civil Practice: Substantive Impact of the CPLR. Sure, there are other sections, but you didn't come here for them. You can here to see if I would actually fight a statue of a cartoon character and read about the CPLR.

The section covers, among other things CPLR CPLR § 205(a), CPLR § 5511, CPLR § 5304, CPLR § 901(a).

The discussion of CPLR 205(a) revolved around Matter of Goldstein v New York State Urban Dev. Corp., 13 NY3d 511 (Ct. App., 2009), a case I posted way back when. Next is CPLR 5511. The author, Thomas F. Gleason, starts with Batavia Turf Farms v. County of Genesee, 91 NY 2d 906 (Ct. App. 1998), a remarkably terse decision. From there he moves to Adams v Genie Indus., Inc., 14 NY3d 535 (Ct. App. 2010), a case I didn't post. Adams, Mr. Gleason writes, rejected the "more restrictive premise of Batavia, viz., "a stipulation on one issue (such as damages) would foreclose an appeal on other unrelated issues, because a party who had consented to an order could not claim to be aggrieved by any part of it within the meaning of CPLR 5511."²

In his discussion of class actions, namely CPLR 901(a), he refers to City of New York v Maul, 14 NY3d 499 (Ct. App. 2010), another case I managed to miss.

There's more. But you have to go read it for yourself.

Norman A. Olch, blogger and appellate guru, provides a several book reviews, including Making Your Case, by Scalia and Garner. Everyone should read it. You shouldnt need him to tell you to, but, if it that's what it takes, then fine.

Harry Steinberg has a must read section on how not to completely screw up your appeal. Part of it involves preserving the issues for appeal. A decision came out today on just that issue: Arrieta v Shams Waterproofing, Inc., 2010 NY Slip Op 06508 (App. Div., 1st 2010).

I might add some more later.

——————

1. I'm recycling facebook updates today.

2. For more cases discussing what it means to be "aggrieved" click HERE. I think all of them are from the Appellate Division, Second Department. Mixon v TBV, Inc., 2010 NY Slip Op 05521 (App. Div., 2nd, 2010) is the most recent and probably the most useful.

CPLR § 4106; § 4113(a); and a missing witness

CPLR § 4106 Alternate jurors
CPLR § 4113 Disagreement by jury
(a) Unanimous verdict not required. A verdict may be rendered by not less than five-sixths of the jurors constituting a jury.

Cornell Univ. v Gordon, 2010 NY Slip Op 06394 (App. Div., 1st, 2010)

Inasmuch as defendant fully consented to -— indeed even proposed -— having the two alternate jurors deliberate and render a verdict with the regular jurors, she has failed to preserve her argument that the court committed reversible error in submitting the case to a jury of eight persons rather than six (see Fader v Planned Parenthood of N.Y. City, 278 AD2d 41 [2000]; see also Sharrow v Dick Corp., 86 NY2d 54, 59-60 [1995]; Waldman v Cohen, 125 AD2d 116, 118-124 [1987]). Also unpreserved, for failure to timely object, is defendant's argument that the 6 to 2 jury votes in favor of plaintiffs were contrary to the requirement of CPLR 4113(a) that a verdict must be rendered by not less than five- sixths of the jurors constituting a jury (see Harvey v B & H Rests., Inc., 40 AD3d 241, 241 [*2][2007]). We note, however, with respect to the merits, that while CPLR 4106 requires that alternate jurors be discharged after the final submission of the case, there was no substitution here of the two alternates for regular jurors after deliberations had begun, the circumstance that invalidated the jury deliberations in Gallegos v Elite Model Mgt. Corp. (28 AD3d 50, 54-55 [2005]), and that all eight jurors deliberated as a group from start to finish and reached a verdict together.

We reject defendant's contention that the court erred in giving a missing witness charge due to her failure to testify. While much of the trial indeed focused on the amount of attorneys' fees that would constitute a reasonable award, an issue about which defendant would not likely have had anything meaningful to contribute, the issue of whether attorneys' fees were properly awardable at all was also submitted for the jury's consideration, an issue that turned, at least in part, on the actions that defendant took to have the remaining plumbing violation removed. As plaintiffs' lay witness testified that defendant was not cooperative in producing the documents necessary to certify removal of the plumbing violation, defendant could be expected to dispute those facts or to explain why she
cannot (see Crowder v Wells & Wells Equip., Inc., 11 AD3d 360, 361 [2004]).

You can find a more detailed analysis here.

CPLR R. 327 and the borrowing statute (CPLR § 202 )

Patriot Exploration, LLC v Thompson & Knight LLP, 2010 NY Slip Op 06217 (App. Div., 1st, 2010)

In this legal malpractice action, the motion court did not abuse its discretion in declining to dismiss this action on forum non conveniens grounds (see Shin-Etsu Chem. Co., Ltd. v ICICI Bank Ltd., 9 AD3d 171, 175-77 [2004]). Since the court may grant a forum non conveniens motion "on any conditions that may be just" (CPLR 327[a]), which includes the power to impose "reasonable conditions designed to protect plaintiffs' interests" (Chawafaty v Chase Manhattan Bank, 288 AD2d 58, 58 [2001], lv denied 98 NY2d 607 [2002]), the court could properly condition an inconvenient-forum dismissal on a waiver of the foreign forum's
two-year statute of limitation (see e.g. Healy v Renaissance Hotel Operating Co., 282 AD2d 363, 364 [2001]; Seung-Min Oh v Gelco Corp., 257 AD2d 385, 387 [1999]; Highgate Pictures v De Paul, 153 AD2d 126, 129 [1990]).

Nor can defendant prevail on its belated offer, made in its motion for reargument, to waive its potential statute of limitations defense, since the court had also properly found that defendant had not met its burden of establishing that New York was an inconvenient forum and that the matter should be tried in Texas based upon a consideration of factors including potential hardship to proposed witnesses, the location of records and files, the residency of the parties, and the burden imposed upon the New York courts (see Gulf Oil Corp. v Gilbert, 330 US 501, 508 [1947]; Islamic Republic of Iran v Pahlavi, 62 NY2d 474, 479 [1984], cert denied, 469 US 1108 [1985]).

Read the dissent. You don't see it here? Click the link, stupid.