Category: [App Div 1st Dept]

Intergalactic Bugs and CPLR R. 3212 and CPLR R. 2221. Happy 4th of July.

Normally, I don’t write anything
special for the 4th of July. 
I’m going to continue that tradition.  I will, however, be doing my civic and patriotic duty:
watching Starship Troopers.  The
number one threat facing the country today is intergalactic bugs.  I, for one, will be prepared.

In the past few days, decisions
have come out from every court but the Appellate Term, Second Department.  Creating a decision that allows an
expert to base her testimony on hypotheticals alone[1]
probably took a lot out of them, so they get a pass for their inactivity.

Today's post will cover the recent
3212 decisions.  I was going to put all of the recent decisions in one
post, but decided that it would take up too much time and space.  And,
nobody would read anything that long.

The last decision also discusses relaxing CPLR R.
2221(e)(2)'s evidence available at the time the original motion was made, requirement, in the interest of justice.  CPLR R.  2221(e) provides:

(e) A motion for leave to renew:

1. shall be identified specifically as such;

2. shall be based upon new facts not offered on the prior motion that would change the prior determination or shall demonstrate that there has been a change in the law that would change the prior determination; and

3. shall contain reasonable justification for the failure to present such facts on the prior motion.

I'm testing out writing my posts in word, so bear with me while I try to figure out the formatting.  From the looks of it, this will be a short lived experiment.

CPLR R. 3212 Summary Judgment

Estate of Marie Merna v Simuro, 2010 NY Slip Op 05725 (App. Div., 2nd,
2010)

As the proponent of the motion for
summary judgment, the bank was required to make a prima facie showing of
entitlement to judgment as a matter of law, tendering sufficient evidence to
eliminate any material issues of fact from the case (see Winegrad v New York Univ. Med. Ctr., 64 NY2d 851, 853; Matin v Chase
Manhattan Bank, 10 AD3d 447, 448). The bank failed to meet
this burden, as the evidence it submitted was insufficient to eliminate any triable
issues of fact as to whether the relevant account statements were "made
available" to the plaintiff before January 5, 2005, the date on which she
discovered the forgeries (UCC 4-406[4]; see
Matin v Chase Manhattan Bank, 10 AD3d at 448-449; Robinson Motor Xpress,
Inc. v HSBC Bank, USA, 37 AD3d 117).

***

However, the Supreme Court
improperly denied that branch of the bank's motion which was to strike the
plaintiff's demand for a jury trial[2]
(see generally Brian Wallach Agency v
Bank of N.Y., 75 AD2d 878; Massry
Importing Co. v Security Natl. Bank, 49 AD2d 750; David v Manufacturers Hanover Trust Co., 59 Misc 2d 248).

Espada v City of New York, 2010 NY Slip Op 05724 (App. Div., 2nd,
2010)

Contrary to the plaintiff's
contention, the defendants' motion was not premature, as the plaintiff failed
to offer an evidentiary basis to suggest that discovery may lead to relevant
evidence or that facts essential to opposing the motion were exclusively within
the defendants' knowledge and control (see
CPLR 3212[f]; Hill v Ackall, 71
AD3d 829; Kimyagarov v Nixon
Taxi Corp., 45 AD3d 736, 737).

Evangelista v Kambanis, 2010 NY Slip Op 05726 (App. Div., 2nd,
2010)

"A party opposing summary
judgment is entitled to obtain further discovery when it appears that facts
supporting the opposing party's position may exist but cannot then be
stated" (Matter of Fasciglione,
73 AD3d 769, 769; see CPLR 3212[f]; Rodriguez v DeStefano, 72 AD3d 926).
Here, at the time the defendant landowners moved for summary judgment, they had
not been deposed. Moreover, it appears that information concerning whether they
created the alleged dangerous condition on the sidewalk abutting their property
which caused the plaintiff's accident, or enjoyed a special use of the sidewalk
which gave rise to the dangerous condition, may be within their exclusive
knowledge (see Adler v City of New York,
52 AD3d 549, 549-550). Under these circumstances, the Supreme Court did not
improvidently exercise its discretion in denying, as premature, the defendants'
motion for summary judgment dismissing the complaint (see Matter of Fasciglione, 73 AD3d at 769; Gruenfeld v City of New Rochelle, 72 AD3d 1025; Rodriguez v DeStefano, 72 AD3d at 926; Harvey v Nealis, 61 AD3d 935, 936).

Atiencia v Mbbco Ii, LLC, 2010 NY Slip Op 05872 (App. Div., 1st,
2010)

A court, in the course of deciding
a motion, is empowered to search the record and award summary judgment to a
nonmoving party (see CPLR 3212(b); Lennard v Khan, 69
AD3d 812, 814 [2010]). However, with respect to the June 2009
order, the motion court erred in dismissing the Labor Law § 241(6) claim
against Farrell, as that claim was not placed before the court on plaintiffs'
summary judgment motion (see Dunham v
Hilco Constr. Co., 89 NY2d 425, 429-430 [1996]).

Regarding the October 2009 order,
the motion court should have granted the motions to renew. Although the newly
submitted evidence was available at the time of the prior motion, the court
"ha[d] discretion to relax this requirement and to grant such a motion in
the interest of justice" (Mejia v
Nanni, 307 AD2d 870, 871 [2003]). Not only did plaintiffs and MBBCO offer
reasonable justification for failing to submit the evidence submitted on the motion,
but the new facts submitted do, in fact, change the prior determination (CPLR
2221[e][2]).

[1] I'm referring to Urban
Radiology, P.C. v Tri-State Consumer Ins. Co., 2010 NY Slip Op 50987(U)
(App. Term, 2nd, 11th & 13th Jud. Dists. 2010).  I have a long
post about it over at the No-Fault blog.  Here is a snippet of the
decision.

 

Defendant
was not attempting to prove that Rafailova was injured as documented in her
medical records, or that she was treated as set forth in those records.
Instead, defendant’s peer review doctor simply opined that, assuming the facts set forth in Rafailova’s records
were true, the treatment allegedly provided was not medically necessary.
Therefore, as defendant was not using the underlying medical records for their
truth, such records were not being
used for a hearsay purpose (see e.g. Dawson v Raimon Realty Corp., 303
AD2d 708 [2003]; Splawn v Lextaj Corp., 197 AD2d 479 [1993]). This is
distinguishable from a situation in which a medical expert relies upon medical
records to establish the fact of an injury (see e.g. Hambsch v New York City
Tr. Auth., 63 NY2d 723 [1984]; Wagman v Bradshaw, 292 AD2d 84 [2002]).
Consequently, plaintiff’s argument that defendant failed to establish the
reliability of the underlying medical records in support of its claim that the
treatment provided was not medically necessary is irrelevant.  (Emphasis Added)

 

[2] This
footnote is mine. In the cases the Appellate Division cites, there was a prior agreement/contract waiving the right to a jury.  Compare,
just for fun, Haber v Cohen, 2010 NY Slip Op 05730 (App. Div., 2nd, 2010)(“Contrary
to the defendants' contention, the amendment of their counterclaims to withdraw
their requests for equitable relief did not revive their right to a trial by
jury”)(Citations omitted).

CPLR § 3123 (NTA)

Easy to ignore and easy to screw up.  Do either and the consequences can be surprising and severe.  This is a big deal.

CPLR § 3123 Admissions as to matters
of fact, papers, documents and photographs

New Image Constr., Inc. v TDR Enters. Inc., 2010 NY Slip Op 05681 (App. Div., 1st, 2010)

Plaintiff, a contractor, brought this action to recover money due for
the build out of a restaurant pursuant to a contract entered into by
TDR and Green. In support of its motion, plaintiff submitted two notices
to admit the genuineness of documents and a notice to admit purported
facts. Although served with the notices to admit, defendants did not
respond to any of them. Among the documents covered by the first two
notices to admit was a June 2006 construction agreement executed by
plaintiff, and by Green, individually and on behalf of TDR. The
agreement provided for the payment of $200,000 for plaintiff's work.
Payments were to be made in five equal installments of $40,000 beginning
on the signing of the contract. The agreement set forth in detail the
scope of the work, and required that any changes to the agreement be in
writing.

Other documents covered by the notices to admit reflected a loan
to defendants by PNC Bank, for the payment of plaintiff's fee, among
other things. These documents show defendants' representation to the
bank that plaintiff had completed its work, a requirement for the
disbursement of the loan funds. The documents also included cancelled
checks made payable to plaintiff that were apparently endorsed and
cashed by defendants instead. Defendants are deemed to have admitted the
genuineness of the said documents because they did not timely respond
to plaintiff's notice (see CPLR 3123; Kowalski v Knox, 293
AD2d 892 [2002]). Hence, plaintiff's prima facie entitlement to
judgment as a matter of law is established. We note, however, that
plaintiff's third notice to admit was improper, since it impermissibly
"compell[ed] admission of fundamental and material issues or ultimate
facts that can only be resolved after a full trial" (Hawthorne Group v RRE Ventures, 7 AD3d 320,
324 [2004]).

Since defendants are deemed to have admitted the genuineness of
the construction [*2]agreement, their
attempts to disaffirm it are unavailing. We also reject defendants'
claim that they terminated the contract due to plaintiff's failure to
diligently complete the work. Defendants do not claim to have served
plaintiff with a 14-day notice to cure and written notice of termination
which were contractual prerequisites to termination. Defendants'
purported termination of the contract was, therefore, ineffective (see
e.g. MCK Bldg. Assoc. v St. Lawrence Univ., 301 AD2d 726, 728
[2003], lv dismissed 99 NY2d 651 [2003]). The court properly
denied the motion for summary judgment as against defendant Terrance
Davis as it has not been shown that he dealt with plaintiff in an
individual capacity (see Kibler v Gilliard Constr., Inc., 53 AD3d 1040,
1042 [2008]).

The bold is mine.

Late Supplemental BP

CPLR R. 3043 Bill of particulars in personal injury actions

(b) Supplemental bill of particulars without leave. A party may serve a supplemental bill of particulars with respect to claims of continuing special damages and disabilities without leave of court at any time, but not less than thirty days prior to trial. Provided however that no new cause of action may be alleged or new injury claimed and that the other party shall upon seven days notice, be entitled to newly exercise any and all rights of discovery but only with respect to such continuing special damages and disabilities.

(c) Discretion of court. Nothing contained in the foregoing shall be deemed to limit the court in denying in a proper case, any one or more of the foregoing particulars, or in a proper case, in granting other, further or different particulars.

Spiegel v Gingrich, 2010 NY Slip Op 04645 (App. Div., 1st, 2010)

The motion court, although it properly concluded that RSD was not a
"new" injury, but a sequela of plaintiff's original injury, granted the
motion to strike the supplemental bill of particulars because it was
served 12 days before trial was scheduled to commence. This alleged
"delay" resulted in the adjournment of the trial without date.

The CPLR contemplates that supplemental bills of particulars may
be served 30 days before trial without leave of court (see CPLR
3043[b]). However, the CPLR grants a motion court the discretion to
determine whether to allow a "late" supplemental bill, or an amended
bill of particulars, provided no prejudice to the defendant results.
Indeed, CPLR 3043[c], entitled "discretion of court," provides,
"[N]othing contained in the foregoing shall be deemed to limit the court
in denying in a proper case, any one or more of the foregoing
particulars, or in a proper case, in granting other, further or
different particulars." 

Defendant herein cannot
seriously contend that he was prejudiced. He argued, before the motion
court, that evidence of RSD was in the record as early as June 2007,
citing Dr. Doolan's assessment. Further, the adjournment of the trial
without a date furnished ample opportunity for defendant to conduct
discovery concerning plaintiff's allegation that she suffers from RSD.
Given the manifest lack of prejudice to defendant, together with the
adjournment of the trial without a date, it was an improvident exercise
of discretion for the motion court to grant the motion to strike
plaintiff's supplemental bill of particulars, based solely on the fact
that the supplemental bill was served 12 days before the scheduled trial
date.

The pretrial order limiting the scope of plaintiff's expert's
expected trial testimony is not appealable before a judgment after trial
is rendered (Santos v Nicolas, 65 AD3d 941 [2009]). Thus,
we dismiss the appeal from this order.

All concur except Tom, J.P. and DeGrasse, J. who dissent
in part in a memorandum by DeGrasse, J. as follows:

DeGRASSE,
J. (dissenting in part)

I respectfully dissent. Plaintiff was injured when she slipped and
fell on defendant's boat. Her supplemental amended bill, served 14 days
before trial, contravened the 30-day deadline set forth in CPLR 3043(b).
She did not seek leave to serve a late supplemental bill, and offered
no reasonable excuse for her delay (see Torres v Educational Alliance,
300 AD2d 469, 470-471 [2002]).

The pretrial order limiting the scope of plaintiff's expert's
expected trial testimony is not appealable before a judgment after trial
is rendered (Santos v Nicolas, 65 AD3d 941 [2009]).
Accordingly, I would affirm the order entered September 28, 2009, which
granted defendant's motion to strike plaintiff's supplemental amended
bill of particulars, and dismiss the appeal from the order entered on
the same date which granted defendant's motion to preclude plaintiff's
biomedical engineer from testifying at trial as to proximate cause.

CPLR § 202 Plaintiff is a resident of its state of incorporation

 CPLR § 202 Cause of action accruing without
the state

Verizon Directories Corp. v Continuum Health Partners, Inc., 2010 NY Slip Op 04640 (App. Div., 1st, 2010)

For purposes of CPLR 202, plaintiff is a "resident" of, and its cause of
action accrued in, Delaware, the state of its incorporation (see
Global Fin. Corp. v Triarc Corp., 93 NY2d 525, 529-530 [1999]; American
Lumbermens Mut. Cas. Co. of Ill. v Cochrane, 129 NYS2d 489 [1954], affd
284 App Div 884 [1954], affd 309 NY 1017 [1956]). We reject
plaintiff's contention that, for purposes of the statute, it is a
"resident" of New York, or that its cause of action accrued in this
State, by virtue of its authorization to do business and asserted
extensive presence here (see Global Fin. Corp., 92 NY2d at
528-29). Hence, New York's six-year statute of limitations does not
apply (see CPLR 202),
and the action is barred by Delaware's one-year statute (10 Del Code
Ann, tit 10, § 8111).

Substitution of Experts: CPLR § 3101(d)

CPLR § 3101(d) Trial Preparation

Maddaloni Jewelers, Inc. v Rolex Watch U.S.A., Inc., 2010 NY Slip Op 04454 (App. Div., 1st, 2010)

The motion court exercised its discretion in a provident manner in
denying defendant's motion for preclusion. Although defendant may have
incurred expenses in preparing a rebuttal to plaintiff's initial
expert's report, there was no indication that plaintiff's substitution
of its expert was willful or prejudicial to defendant (see Gallo v
Linkow, 255 AD2d 113, 117 [1998]). The record demonstrates that the
case had been already been delayed due to defense counsel's surgery and
was again delayed because of a change of Justices assigned to the case.
Plaintiff's service of its substitution of experts was neither done on
the eve of trial nor at the last-minute, as no trial date was set at the
time the substituted expert was hired (see e.g. Mateo v 83 Post Ave. Assoc., 12 AD3d 205,
205-206 [2004]). Furthermore, even assuming that plaintiff was required
to show "good cause" (CPLR 3101[d][1][i]), its proffered reason for the
substitution of experts, namely, the breakdown in its relationship with
its former expert, sufficiently established such "good cause" (compare Lissak v Cerabona, 10 AD3d 308,
309-310 [2004]).

The motion court providently exercised its discretion in refusing
to award legal fees and costs attributable to the substitution of the
expert. "An award of attorneys' fees as a direct remedy must be based on
contract or statute" or where there is established wrongdoing (City
of New York v Zuckerman, et al., 234 AD2d 160 [1st Dept 1996], app
dismissed 90 NY2d 845 [1997]). While a party may be ordered to bear
the cost of his or her adversary's rebuttal expert where a party fails
to disclose the substance of the expert's testimony in accordance with
CPLR 3101 and where the matter is on for trial (see St. Hilaire v
White, 305 AD2d 209 [2003]), here, plaintiff's notice of
substitution of its expert was offered months before the action was
scheduled [*2]for trial, and there is no
showing that plaintiff acted improperly in attempting to substitute
experts.

The bold is mine.

Renewal proper to correct “procedural oversight” CPLR R. 2221

CPLR R. 2221
(e)
Motion for Leave to Renew

Zhijian Yang v Alston, 2010 NY Slip Op 04236 (App. Div., 1st, 2010)

The burden then shifted to plaintiff. Initially, we find that in the
absence of any prejudice to defendants, renewal was properly granted to
plaintiff to correct a procedural oversight on the previous motion and
allow the submission of her examining physician's report in admissible
form (see Cespedes v McNamee, 308 AD2d 409 [2003]). However, upon
renewal, Supreme Court should have adhered to its original
determination granting defendants' motion for summary judgment because
plaintiff failed to raise a triable issue of material fact as to whether
she sustained a serious injury in this accident.

Strange.  Generally, a motion to renew requires an explanation for failing to provide the evidence in the first place.  The Court cites to Cespedes:

The IAS court originally granted defendants' motion for summary judgment because the physician's report that plaintiff submitted in opposition was neither sworn nor affirmed pursuant to CPLR 2106. Immediately after learning of the court's decision, plaintiff moved to renew and reargue, submitting his doctor's findings in affidavit form, and explaining, through his attorney and doctor, that neither realized the report was unsworn until after receiving the IAS court's order. The IAS court properly granted plaintiff's motion, which, contrary to its designation, was one to renew, not reargue, since it was based on newly submitted evidence (see Telep v Republic El. Corp., 267 AD2d 57 [1999]). Renewal may be granted where the failure to submit a doctor's report in affidavit form “'was inadvertent, and … absen[t] … any showing by defendants of prejudice attributable to the short delay caused by such failure”' (Ramos v Dekhtyar, 301 AD2d 428, 429 [2003]; see also Segall v Heyer, 161 AD2d 471 [1990]). Defendants show no prejudice. On the merits, an issue of fact as to whether plaintiff sustained a serious injury is raised by his doctor's affidavit correlating significant quantified range of motion limitations in plaintiff's lower back, among other conditions, including lumbar muscle spasms, to a herniated disc revealed in an MRI taken shortly after the accident, and opining that the disability to plaintiff's back is permanent (see Toure v Avis Rent A Car Sys., 98 NY2d 345, 350, 352-353 [2002]; Gonzalez v Vasquez, 301 AD2d 438 [2003]; Aguilar v N.Y.C. Water Works, 298 AD2d 245 [2002]).

No CPLR § 3101(d) notice required for plaintiff’s treating physician

CPLR § 3101(d) Trial Preparation (2) Materials

Soriano v Inoa, 2010 NY Slip Op 03843 (App. Div., 1st, 2010)

It is unclear from the trial record whether Dr. Gutstein was an expert
witness as to whom CPLR 3101(d) notice was required, or plaintiff's
treating physician, as to whom no notice was required (see e.g. Breen
v Laric Entertainment Corp., 1 AD3d 298, 299-300 [2003]). Moreover,
it is clear that the prejudice to defendants arose from the lack of
proper authorizations for medical records and not from the report
annexed to plaintiff's expert notice. 

Accordingly, Gutstein's testimony as to causation should not have
been precluded on the ground of plaintiff's late service of the notice.

For more information, a lot more information, on this case, head over to Hochfelder's New York Injury Cases Blog.

CPLR R. 3212(a) Timing: What happens where the case is stricken from the trial calendar

Rivera v City of New York, 2010 NY Slip Op 03773 (App. Div., 1st, 2010)

Defendant's cross motion for summary judgment, which was made in
response to a motion by plaintiff characterized by the motion court as
one to restore the action to the calendar, should have been denied as
untimely, as defendant failed to show good cause for making the cross
motion more than 120 days after the filing of the note of issue (CPLR
3212[a]; Brill v City of New York, 2 NY3d 648, 652
[2004]). At least where, as here, the 120-day time limit had expired
before the case was struck from the calendar, we reject defendant's
argument that the 120-day limit does not apply to cases that have been
struck from the calendar. We note Brill's express prohibition
against consideration of unexcused, untimely motions no matter how
meritorious or nonprejudicial (id. at 653, especially n 4; see Perini Corp. v City of New York, 16 AD3d 37,
39-40 [2005]).

The bold is mine.

The sad state of CPLR § 2309 and other things.

CPLR § 2309 is a disaster.  The courts are wildly inconsistent in how they treat it.  Some prefer the substance over form approach and others do the opposite.  Not too long ago, the Appellate Term, First Department allowed a party to add a certificate of conformity at the appellate level.  See, Eastern
Star Acupuncture, P.C. v Clarendon Natl. Ins. Co., 2010 NY Slip
Op 50043(U) (App. Term, 1st, 2010).  A few days ago, the Appellate Division, First Department wasn't as understanding. (h/t JT).  In Green v Fairway Operating Corp., 2010 NY Slip Op 03481 (App. Div., 1st, 2010) the defendant's motion for summary judgment was granted on default.  Plaintiff moved to vacate and attached an affidavit from a non-party witness which was sworn in the DR.  The plaintiff's motion was denied and the Appellate Division affirmed.  I think I said this once before, but it remains true, it's an exceptionally silly reason to lose a motion.  JT compares it to russian roulette, which is pretty apt.

The last time I wrote about 2309, I said that it was a dead objection, or something like that.  It appears that, in the first department at least, it is alive and well.  The objection, however, must be made in the papers, otherwise it's waived.  You'll find that most people don't know enough to object.

I'm sure you're thinking, "well, what's the rule in the First Department after Green?"  I have no idea.  I'd be interested to see what the Appellate Term does with Green.  Will it distinguish it or make 2309 a hard rule?

Other issues on my mind:

  • Why is there a split between the Second and First Department as to what is required to show a "reasonable excuse" when attempting to vacate a default?
  • Why do the courts allow a defendant to move to dismiss under CPLR R. 3211(a)(7) when the defendant is not claiming that the plaintiff failed to state a cause of action?  When affidavits and other proofs are attached, the courts change their inquiry from whether plaintiff has stated a cause of action to whether plaintiff has a cause of action (which is different from whether a plaintiff will ultimate be successful with that cause of action).  This, mind you, is different than a court converting it to a motion for summary judgment.  It just doesn't make any damn sense to me.

Late–but not too late–Jury Demand

Rosenbaum v Schlossman, 2010 NY Slip Op 03494 (App. Div., 1st, 2010)

Order, Supreme Court, New York County (Milton A. Tingling, J.),
entered March 30, 2009, which denied defendants' motion to vacate the
note of issue, unanimously affirmed, without costs. Order, same court,
Justice and entry date, which denied defendants' motion to stay a
scheduled nonjury trial of this matter and compel the Clerk to accept a
jury demand, unanimously modified, on the facts, to direct the Clerk to
accept the jury demand nunc pro tunc, and, in view of the interim stay
of trial previously ordered by this Court, the remainder of the appeal
from said order unanimously dismissed as academic, without costs.

Defendants should be permitted to serve and file a late jury
demand given that the lateness, by only five days, was due in part to
the late filing of the note of issue, and also given no intention by
defendants to waive a jury trial, a prompt motion by defendants to be
relieved of their default in timely filing a jury demand, and no
prejudice to plaintiff caused by the late jury demand (see A.S.L.
Enters. v Venus Labs., 264 AD2d 372, 373 [1999]). Defendants' motion
to vacate the note of issue was properly denied where defendants had
received copies of plaintiff's letter to the court requesting the
court's issuance of a written order memorializing a prior oral order
extending the time to file a note of issue, but did not object to the
requested relief or inform [*2]the court,
at that time, of their view that disclosure was incomplete (22 NYCRR
202.21[d]). We have considered and rejected defendants' remaining
contention.

The bold is mine.

Instead of simply writing that the remaining contention is "rejected" wouldn't it be nice if they said what the remaining contention was.