[App Div 1st Dept]

CPLR R. 5015(a)(4) Bad Faith Removal Doesn’t Divest NY Court of Jurisdiction

CPLR R. 5015 Relief from judgment or order
(a) On motion
(4) lack of jurisdiction to render the judgment or order

Astoria Fed. Sav. & Loan Association/Fidelity N.Y. FSB v Lane, 2009 NY Slip Op 05685 (App. Div., 1st, 2009)

Now, more than 10 years after the properties were sold and without
giving any excuse for her extraordinary delay, Lane seeks to undo the
foreclosures, oust the current owners from their homes, and vacate the
judgments. Lane's motions, presumably brought pursuant to CPLR
5015(a)(4), allege that Supreme Court lacked jurisdiction during the
limited time period in 1997 between the filing of the removal petition
and the federal court remand. Notably, Lane does not claim, nor could
she, that Supreme Court did not have jurisdiction over the matter at
any other time during the long history of this case. Lane offers no
reason why her removal attempt was proper, nor does she present any
viable defense on the merits of the foreclosure actions. And it is
undisputed that at the time the properties were sold, the federal court
had already remanded the matter to state court.

As a general rule, removal of an action divests the state court of its
jurisdiction over the dispute while the removal petition is pending in
federal court (Matter of Artists' Representatives Assn. [Haley],
26 AD2d 918 [1966]). While no New York case has addressed the specific
issue presented here, a number of other courts have carved out
exceptions to the general rule focusing on situations where removal
petitions were frivolous, duplicative or abusive. For example, in Motton v Lockheed Martin Corp.
(692 So 2d 6 [La App 1997]), after the defendant filed an improper
removal petition but before the federal court remanded, the plaintiff
filed a notice of appeal. The court denied the defendant's motion to
dismiss the appeal, finding that the defendant's removal attempt was
made to delay the plaintiff's right to move forward in the case.

…

We find that under the unique circumstances of this case, where the
federal court found the removal petition to be frivolous on its face
and where it was made in bad faith at the eleventh hour, following an
unsuccessful appeal, the motion court was not required, more than a
decade later, to vacate the judgments based on a claimed lack of
jurisdiction. There is no question that Lane's removal petition was
frivolous. In the order summarily remanding the matter to state court,
the federal court concluded that the petition showed "no non-frivolous
basis for jurisdiction" and that "it clearly appears on the face of the
papers submitted that removal should not be permitted."
[*3]

Moreover, Lane's removal
petition was undeniably untimely. A notice of removal of a civil action
must be filed within 30 days after receipt of a copy of the initial
pleading (28 USC
§ 1446[b]). Here, the foreclosure actions were commenced in
December 1994 and Lane's answers were struck in February 1996, yet the
removal petition was not filed until May 1997. Therefore, in addition
to asserting frivolous grounds for removal, the petition was
time-barred and could not have caused the state court to lose
jurisdiction (see Booth v Stenshoel, 96 Wash App 1019, 1999 WL
438888 [state court had jurisdiction to enter judgment after removal
petition was filed on the day of trial and 16 months after the action
was commenced]; Miller Block Co. v United States Natl. Bank, 389 Pa Super 461, 567 A2d 695 [1989], lv denied
525 Pa 658, 582 A2d 324 91990] [state court not divested of
jurisdiction upon filing of the removal petition where petition was
undisputedly untimely]; Ramsey v A.I.U. Ins. Co., 1985 Ohio App
LEXIS 8157, 1985 WL 10329 [an untimely removal petition is a nullity
and does not divest the state of jurisdiction]).

Lane's bad faith in filing her removal petition is apparent.
After an unsuccessful appeal and the lifting of an appellate stay, Lane
filed for bankruptcy and, as a result, obtained yet another stay of the
foreclosure action, which already had been pending for several years.
After the bankruptcy stay was lifted, plaintiff submitted proposed
judgments of foreclosure. A week later, instead of taking any action in
state court, Lane filed her frivolous removal petition. The only fair
reading of the record is that Lane's actions in attempting removal were
made in bad faith for the purpose of delaying the imminent
foreclosures. Lane's bad faith litigation conduct persists to this day,
as evidenced by her inexcusable delay in waiting more than 10 years to
challenge the judgments despite being aware of their existence within
weeks of their entry.

We recognize that some courts have concluded no exceptions
should be created to the general rule and thus have invalidated state
court action taken after removal but before remand (see e.g. South Carolina v Moore, 447 F2d 1067 [4th Cir 1971]; State ex rel. Morrison v Price, 285 Kan 389, 172 P3d 561 [2007]; People v Martin-Trigona,
28 Ill App 3d 605, 328 NE2d 362 [1975]). These cases are not binding on
us, and in any event, we decline to follow them under the egregious
circumstances presented here. With no good reason, Lane waited over a
decade before deciding to come back to court to challenge the
foreclosures. Her abuse of the legal process, both in filing a bad
faith petition and in failing to move to vacate the judgments she
unquestionably knew about, cannot be countenanced, particularly in
light of the harm that could befall the innocent purchasers of the
properties. To hold otherwise would reward Lane for her inexcusable
delaying tactics and would be entirely "inconsistent with any notion of
fairness and justice" (Farm Credit Bank of St. Paul v Rub, supra, 481 NW2d at 457).

The bold is mine.

Contracts — SJ denied because party never received the entire contract

Martin v Citibank, N.A., 2009 NY Slip Op 05906 (App. Div., 1st, 2009)

A party to a contract is not relieved from the contract's provisions by asserting that he or she failed to read it (see Florence v Merchants Cent. Alarm Co., 51 NY2d 793, 795 [1980]; Pimpinello v Swift & Co.,
253 NY 159, 162-163 [1930]). Here, however, plaintiff contends that the
agreement which he signed did not include the page containing the
liability limitation, and that he was not given a copy of that page.
Although defendant introduced a multi-page document purporting to be
the contract plaintiff signed, defendant's employee who rented the box
to plaintiff could not recall whether all of the pages of that
agreement were actually given to plaintiff.

The record contains other evidence which, when viewed in the
light most favorable to the plaintiff and affording him every favorable
inference (see Johnson v Goldberger, 286 AD2d 604, 606 [2001]),
lends support to plaintiff's contention that he was not provided the
complete lease agreement. First, the agreement produced by defendant in
this litigation is missing the sixth page. Although defendant now
claims, without any citation to the record, that this missing page is
actually the signature card, defendant's employee did not know what
information was contained on the sixth page.

In addition, pages two and three of the agreement produced by
defendant are not initialed by either plaintiff or defendant, and the
blank space on page three that is intended to contain [*2]defendant's
address for notice purposes is not filled in. On the other hand, all of
the pages plaintiff admits having seen have writing on them. Finally,
the staple was removed from the lease agreement defendant produced,
raising an issue of fact as to whether the integrity of the document
was compromised. Based on this evidence, we find that plaintiff has
raised a triable issue of fact regarding whether or not he was given
the entire agreement.

Although we do not disagree with the dissent's recitation of
the general principle that a party's failure to read a contract does
not excuse him or her from its terms, the critical distinction here is
that plaintiff contends that he never received the full agreement and
thus could not have read the limitation of liability clause. Although
the dissent suggests that plaintiff's claim is not believable, the
record contains more than plaintiff's bare assertion. Plaintiff's
position in this litigation is buttressed by defendant's employee's
inability to recall whether plaintiff received the entire agreement,
along with other evidence suggesting that plaintiff may not have
received all of the pages. On a motion for summary judgment, the
court's function is issue finding, not issue determination, and any
questions of credibility are best resolved by the trier of fact (see Rodriguez v Parkchester S. Condominium, 178 AD2d 231 [1991]).

Pesky staples.

The bold is mine.

Pleadings & CPLR R. 3016 & Slander per se

CPLR R. 3016 Particularity in specific actions

Pourquoi M.P.S., Inc. v Worldstar Intl., Ltd., 2009 NY Slip Op 05755 (App. Div., 2nd, 2009)

The order appealed from relates to the plaintiff's amended complaint,
and the affirmative defenses set forth in the answer thereto of the
defendant Worldstar International, Ltd. [*2]However, those pleadings are no longer viable as they have been superseded by new pleadings alleging new causes of action (see Penniman v Fuller & Warren Co., 133 NY 442, 444; Bobash, Inc. v Festinger, 57 AD3d 464, 465; Williams v Feig, 12 AD3d 504, 505; Schoenborn v Kinderhill Corp., 98 AD2d 831, 832; Hawley v Travelers Indem. Co., 90 AD2d 684; Halmar Distribs. v Approved Mfg. Corp., 49 AD2d 841; Millard v Delaware, L. & W. R. Co., 204 App Div 80, 83; Branower & Son v Waldes, 173 App Div 676, 678). Accordingly, the appeal has been rendered academic and must be dismissed (see generally Chalasani v Neuman, 64 NY2d 879, 880; Bobash, Inc. v Festinger, 57 AD3d at 465; DePasquale v Estate of DePasquale, 44 AD3d 606, 607; Stefanopoulos v Action Airport Serv. of L.I., Inc., 35 AD3d 590; Weber v Goss, 18 AD3d 540; Monter v Massachusetts Mut. Life Ins. Co., 12 AD3d 650, 651; Williams v Feig, 12 AD3d at 505; Van Valkenburgh, Nooger & Neville v Rider Publ., 24 AD2d 437, 438).

Epifani v Johnson, 2009 NY Slip Op 05287 (App. Div., 2nd, 2009)

"The elements of a cause of action [to recover damages] for defamation are a false [*5]statement,
published without privilege or authorization to a third party,
constituting fault as judged by, at a minimum, a negligence standard,
and it must either cause special harm or constitute defamation per se'"
(Salvatore v Kumar, 45 AD3d 560, 563, quoting Dillon v City of New York, 261 AD2d 34, 38). The complaint must set forth the particular words allegedly constituting defamation (see CPLR
3016[a]), and it must also allege the time when, place where, and
manner in which the false statement was made, and specify to whom it
was made (see Dillon v City of New York, 261 AD2d at 38).

"Generally, a plaintiff alleging slander must plead and prove
that he or she has sustained special damages, i.e., the loss of
something having economic or pecuniary value'" (Rufeh v Schwartz, 50 AD3d 1002, 1003, quoting Liberman v Gelstein, 80
NY2d 429, 434-435). "A plaintiff need not prove special damages,
however, if he or she can establish that the alleged defamatory
statement constituted slander per se" (Rufeh v Schwartz, 50 AD3d
at 1003). The four exceptions which constitute "slander per se" are
statements (i) charging plaintiff with a serious crime; (ii) that tend
to injure another in his or her trade, business or profession; (iii)
that plaintiff has a loathsome disease; or (iv) imputing unchastity to
a woman (see Liberman v Gelstein, 80 NY2d at 435). When
statements fall within one of these categories, the law presumes that
damages will result, and they need not be alleged or proven (id.).

Johnson, in addressing the defamation cause of action, appears
to claim, in effect, that her alleged statement to Supple's references
that Supple was "crazy" is the only statement at issue. However, in
addition to this purported statement, Supple alleges that Johnson
stated, to Oliverre and another employee named Marita, that Supple's
employment with her was being terminated because she was stealing.

The complaint alleges that the statement that Supple was
terminated because she was stealing from Johnson was made on or about
June 15, 2005, sets forth the statement allegedly made, and that it was
made to Oliverre and Marita. Accordingly, these allegations satisfied
the pleading requirements of CPLR 3016, inasmuch as it alleged the time
when, place where, and manner in which the false statement was made,
and specified to whom it was made (see generally Dillon v City of New York, 261 AD2d at 38).

With regard to damages, the complaint only alleges that Supple "has
been injured in her good name and reputation, has suffered great pain
and mental anguish, and has otherwise been damaged in all to her damage
[sic] in a sum to be proven at the time of trial according to proof."
This assertion fails to allege special damages with sufficient
particularity. However, if the allegedly defamatory statement qualifies
as slander per se, the failure to plead special damages with
particularity will not be fatal.

As to the alleged statement that Supple was stealing from Johnson,
this constitutes an allegation of a "serious crime" so as to qualify as
slander per se (see Liberman v Gelstein, 80 NY2d at 435
[discussing the distinction between serious and nonserious crimes for
qualification as slander per se, and citing the Restatement of Torts, §
571, comment g, which lists crimes actionable as per se slander,
including, inter alia, larceny]). Further, this alleged statement would
clearly constitute one of fact rather than the privileged expression of
an opinion (see Mann v Abel, 10 NY3d 271,
276 [expressions of opinion, as opposed to assertions of fact, are
deemed privileged and, no matter how offensive, cannot be the subject
of an action to recover damages for defamation]).

With regard to Johnson's alleged statement describing Supple as
"crazy," the complaint only alleges that the defamation occurred when
Johnson made this remark generally to Supple's "references," and thus
failed to identify, with necessary specifity, the person or persons to
whom the statements were made (see Dillon v City of New York, 261
AD2d at 38), resulting in an insufficiently pleaded cause of action.
Moreover, Johnson's remark to Oliverre allegedly characterizing Supple
as "crazy" does not appear to be a defamatory statement concerning
Supple; Johnson did not tell Oliverre that she believed that Supple was
"crazy," but only that she telephoned Supple's references and told them
that Supple was "crazy." To the extent that the Court may infer that
the substance of the statement was Johnson's assertion that Supple was
"crazy," this would appear to be a hyperbolic expression of opinion
and, thus, nonactionable (see generally Mann v Abel, 10 NY3d at 276).

Since, however, Johnson's alleged statement that Supple's
employment was being terminated because Supple was stealing was
sufficiently pleaded, and constituted slander per se, the Supreme Court
properly denied that branch of Johnson's motion which was to dismiss so
much of the eighth cause of action as was premised on this allegedly
defamatory statement.

The bold is mine.

CPLR R. 5015(a); 22 NYCRR 202.48; Stipulatons

CPLR R. 5015 Relief from judgment or order
(a) On motion
(1) excusable default…

22 NYCRR 202.48 Submission of orders, judgments and decrees for signature

Klughaupt v Hi-Tower Contrs., Inc., 2009 NY Slip Op 05750 (App. Div., 2nd, 2009)

The Supreme Court providently exercised its discretion in denying the
plaintiff's motion for leave to enter a default judgment against the
defendant Lynch Park, LLC (hereinafter Lynch Park), and in granting
Lynch Park's cross motion to vacate its default in answering and for
leave to serve a late answer (see CPLR 5015). Considering the
lack of any prejudice to the plaintiff as a result of the relatively
short three-week delay in serving an answer, the existence of a
potentially meritorious defense, and the public policy favoring the
resolution of cases on the merits, the Supreme Court properly excused
the de minimis delay in answering (see Schonfeld v Blue & White Food Prods. Corp., 29 AD3d 673; Yonkers Rib House, Inc. v 1789 Cent. Park Corp., 19 AD3d 687; Trimble v SAS Taxi Co., Inc., 8 AD3d 557; see e.g. Perez v Linshar Realty Corp., 259 AD2d 532; Swidler v World-Wide Volkswagen Corp., 85 AD2d 239, cf. Leifer v Pilgreen Corp.,AD3d,
2009 NY Slip Op 03872 [2d Dept 2009] [10-month delay in moving to
vacate default in answering or appearing, with no meritorious defense,
does not warrant vacatur of default]).

Diane v Ricale Taxi, Inc., 2009 NY Slip Op 05680 (App. Div., 1st, 2009)

Plaintiff fails to show that a judgment was ever issued, much
less served on appellant. The only exhibits attached to plaintiff's
opposition are an order granting a default judgment and directing an
inquest, with no notice of entry or affidavit of service, and a copy of
this Court's subsequent order (291 AD2d 320) involving another
defendant and containing no references to any judgment in any amount
against appellant. Accordingly, it does not appear that appellant's
one-year time limit under CPLR 5015(a)(1) to move for relief from a
judgment or order ever began to run, and appellant's motion should not
have been denied as untimely. For present purposes, appellant, who was
named a defendant only because he was one of two employees who
regularly drove the taxi involved in the accident, comes forward with
sufficient evidence that he could not have been the driver since the
accident occurred at night while he worked only days. Indeed, the
possibility that appellant had nothing to do with the accident would,
given a reasonable excuse, warrant vacatur of the default judgment in
the interest of justice even if the one-year time limit had run (see Johnson v Minskoff & Sons, 287 AD2d 233, 236 [2001]). We accept appellant's excuse that he did not understand the import of the legal documents he was [*2]receiving and trusted his employer's assurances that it would take care of the matter for him.

Another rare, "in the interests of justice" vacatur.

Rowley v Amrhein, 2009 NY Slip Op 05834 (App. Div., 1st, 2009)

Defendant's challenge to the judgment on the ground that it
inaccurately reflects the stipulation of settlement by including terms
that are inconsistent therewith is not preserved for appellate review
since there is no record that defendant raised
any objection to plaintiff's proposed judgment, as required by 22 NYCRR 202.48(c)(2) (see Salamone v Wincaf Props., 9 AD3d 127, 140 [2004], lv dismissed
4 NY3d 794 [2005]). Defendant's claim that he had no opportunity to
object to plaintiff's proposed judgment because he was not properly
served with a copy thereof is properly directed to Supreme Court in a
motion to vacate the judgment pursuant to CPLR 5015(a)(1), not to this
Court on appeal (see McCue v McCue, 225 AD2d 975, 976 [1996]; Levy v Blue Cross & Blue Shield of Greater N.Y., 124 AD2d 900, 901 [1986]).

Defendant's challenges to the judgment on the bases that it
grants plaintiff a divorce on a ground that he contests and fails to
adjudicate his counterclaim allege substantive errors in the judgment
that affect his substantial rights and not mere inconsistencies with
the intentions of the court and the parties as demonstrated by the
record. Thus, review may be obtained either through an appeal from the
judgment or through a motion to vacate pursuant to CPLR 5015(a) (Salamone,
9 AD3d at 133-134). The record reveals that Supreme Court did not
address the grounds for divorce or defendant's counterclaim.
Accordingly, we remand the matter for further proceedings to determine
these issues.

Defendant's contention that the stipulation disposing of the
parties' economic issues is unenforceable against him is not properly
before us, since defendant never moved in Supreme Court to set aside
the stipulation (see Garrison v Garrison, 52 AD3d 927, 928 [2008]; Hopkins v Hopkins, 97 AD2d 457 [1983]). In any event, the terms of the stipulation were memorialized in [*2]a
proposed preliminary conference order that the court reviewed during
the October 30, 2007 proceedings, the stipulation was signed and
initialed by both parties, and the court expressly informed the parties
on the record that it was a binding contract. The stipulation contained
no express reservation of the right not to be bound until the execution
of a more formal agreement. To the contrary, all the essential terms
and conditions of an agreement were set forth in the stipulation, and
all that remained was their translation into a more formal document (see Brause v Goldman, 10 AD2d 328, 332 [1960], affd 9 NY2d 620 [1961]).

The bold is mine.

Witnesses and disclosure

Guzman v Spring Cr. Towers, Inc., 2009 NY Slip Op 05508 (App. Div., 1st, 2009)

Contrary to the plaintiff's contention, the Supreme Court properly
admitted into evidence photographs of a barrier similar to the barrier
used at the construction site near the location of the plaintiff's
accident, since there was testimony that the photograph fairly and
accurately represented the barrier used at the time of the accident (see Shalot v Schneider Natl. Carriers, Inc., 57 AD3d 885, 886; Cubeta v York Intl. Corp., 30 AD3d 557, 561; Kartychak v Consolidated Edison of N.Y., 304 AD2d 487).

Additionally, the trial court did not improvidently exercise its
discretion in allowing two emergency medical technicians to testify,
despite the defendants' failure to include their names on a witness
list. There was no evidence that this omission was willful, and any
prejudice to the plaintiff was minimal since the plaintiff had access
to the ambulance report and the technicians (see Castracane v Campbell, 300 AD2d 704, 706; Alber v State of New York, 252 AD2d 856, 857).

Islar v New York City Bd. of Educ., 2009 NY Slip Op 05609 (App. Div., 1st, 2009)

The court exercised its discretion in a provident manner in imposing a lesser sanction than that requested (see Kugel v City of New York, 60 AD3d 403
[2009]). The record indicates that the missing witness statements from
defendants' internal investigation of the alleged sexual assault of
infant plaintiff were not crucial to the prosecution of plaintiffs'
claims, inasmuch as each of the witnesses was available for deposition,
and other investigative proof, including police records, suggested that
the witness' statements were not supportive of plaintiffs' claims (see Jordan v Doyle, 24 AD3d 107 [2005], lv denied
7 NY3d 705 [2006]). Although constituting hearsay, the court properly
relied, in part, on police investigative records in deciding the
motion.

Furthermore, defendants' conduct in not providing a definitive
answer as to the availability of the witness statements during an
18-month period, albeit during which 8 discovery orders were issued,
did not amount to willful and contumacious conduct on defendants' part,
since defendants could not locate the statements despite a thorough
search for them. Even assuming that plaintiffs met their initial burden
of showing that defendants' conduct was willful and contumacious,
defendants offered a reasonable excuse for their failure to comply with
discovery orders, namely that the statements could not be located (see Palmenta v Columbia Univ., 266 AD2d 90 [1999]).

The bold is mine.

Experts, Qualificaton, Evidence, and Hearsay

County of Nassau v Fuentes, 2009 NY Slip Op 05843 (App. Div., 2nd, 2009)

In support of his motion for summary judgment dismissing the complaint,
the defendant made a prima facie showing of entitlement to judgment as
a matter of law by submitting an affidavit in which he denied receiving
notice, prior to the commencement of this action, that his vehicle
might be subject to a forfeiture action (see Nassau County Administrative Code § 8-7.0[g][4][a]; County of Nassau v Bassen, 14 Misc 3d 633; see generally Alvarez v Prospect Hosp.,
68 NY2d 320). However, in opposition to that showing, the plaintiff,
County of Nassau, raised a triable issue of fact by producing copies of
a "Vehicle Seizure Notice," purportedly signed by the defendant at the
time of his arrest for the underlying offense, and a return receipt
card, also purportedly signed by the defendant, acknowledging receipt
of a letter the County allegedly sent to him prior to the commencement
of this action. Both documents advised that the subject vehicle might
be the subject of a forfeiture action. While we conclude that the
County's showing was sufficient to raise an issue of fact warranting
denial of the defendant's motion, contrary to the County's contention,
it did not warrant the granting of that branch of its cross motion
which was for summary judgment on the complaint, as the genuineness of
the defendant's purported signatures on the documents described above
presents an issue of fact (see Seoulbank, N.Y. Agency v D & J Import & Export Corp., 270 AD2d 193, 194; Dyckman v Barrett, 187 AD2d 553, 555).

Saunders v 551 Galaxy Realty Corp., 2009 NY Slip Op 05763 (App. Div., 2nd, 2009)

The defendants failed to submit sufficient evidence in admissible form
to make a prima facie showing of entitlement to judgment as a matter of
law. The defendants offered no evidence, other than inadmissible
hearsay, as to why the air conditioner fell from the window. The
defendants failed to show that they were not negligent in their initial
inspection of the air conditioner's installation. No evidence was
provided as to the defendants' general policy on inspecting and
maintaining air conditioning units installed on the premises, and the
defendants failed to show that, as the owners of the property, they
relinquished exclusive control of the apartment and the window from
which the air conditioner fell, to a tenant who had no lease, thus
absolving them of liability (see Spanbock v Fifty Fourth St. Condominium, 3
AD3d 395). Accordingly, the Supreme Court properly denied the
defendants' motion for summary judgment dismissing the complaint
without considering the sufficiency of the plaintiff's opposition
papers (see Winegrad v New York Univ. Med. Ctr., 64 NY2d 851, 853).

Schechter v 3320 Holding LLC, 2009 NY Slip Op 05684 (App. Div., 1st, 2009)

For a witness to be qualified as an expert, the witness must possess
the requisite skill, training, education, knowledge or experience from
which it can be assumed that the opinion rendered is reliable (Matott v Ward,
48 NY2d 455, 459 [1979]). Here, Santiago had no formal training or
education, and does not possess any certification or license, with
respect to elevator maintenance or repair. He was not, however,
precluded from being qualified as an expert for lack of formal training
and education; he could have been qualified if through "long
observation and actual experience" (Price v New York City Hous. Auth.,
92 NY2d 553, 559 [1998] [internal quotation marks and brackets
omitted]) he possessed sufficient skill, knowledge and experience in
elevator maintenance and repair to support an assumption that his
opinion regarding the cause of the interlock's failure was reliable.
But Imperial Elevator failed to submit evidence demonstrating that
Santiago possessed such skill, knowledge and experience (see Rosen v Tanning Loft, 16 AD3d 480 [2005], citing, among other cases, Hofmann v Toys "R" Us, NY Ltd. Partnership, 272 AD2d 296 [2000]; see also Hellert v Town of Hamburg, 50 AD3d 1481 [2008], lv denied
11 NY3d 702 [2008]). No evidence was submitted demonstrating what
on-the-job training Santiago received from the coworker at his prior
employer; Santiago's duties as a "maintenance man" — "check[ing] for
oil, check[ing] [and cleaning] the [inter]locks," "cleaning the motor
room, cleaning the top of the ca[b], [and] cleaning the pit [beneath
the elevator]" — do not suggest that he can render a reliable opinion
regarding the cause of the failure of the interlock; and Santiago's
deposition testimony does not demonstrate that he is familiar with the
laws, rules, regulations, and accepted customs and practices in the
field of elevator maintenance and repair (cf. Efstathiou v Cuzco, LLC, 51 AD3d 712
[2008]). Because Imperial Elevator failed to demonstrate that Santiago
is qualified to render a reliable opinion regarding the cause of the
failure of the interlock, it failed to raise a triable issue of fact
with respect to the issue of its negligence.

Continue reading “Experts, Qualificaton, Evidence, and Hearsay”

CPLR R. 3212(a)(f) — an Unusual Reasonable Excuse & Judicial Estoppel

CPLR R. 3212
(a) Time; kind of action [120-day rule]
(f) Facts unavailable to opposing party

Madison Third Bldg. Cos., LLC v Berkey, 2009 NY Slip Op 05686 (App. Div., 1st, 2009)

Inasmuch as defendants' attorney reasonably interpreted a court
attorney's oral directive at a post-note of issue conference that
summary judgment motions "be made in accordance with the CPLR," to mean
that the time to make a summary judgment motion had been extended from
the 45 day deadline set in two pre-note of issue conference orders to
the 120-day outer limit permitted by CPLR 3212(a), such excuse was
reasonable under the
circumstances and the motion should have been considered on its merits.

I put the whole thing in bold.

Tedesco v Tedesco, 2009 NY Slip Op 05767 (App. Div., 2nd, 2009)

The appellant Riccardo Tedesco, Sr., is a plaintiff in Action Nos. 1
and 3, and a defendant in Action No. 2. The three actions, which were
joined for trial, concern a dispute between Tedesco, Sr., and two of
his children concerning the ownership of certain real property. We
agree with the Supreme Court that Tedesco, Sr., cannot now be heard to
claim ownership of the properties in question, having denied ownership
of any real property in prior judicial proceedings that took place
after the alleged real estate transactions at issue here. The doctrine
of judicial estoppel [*2]precludes a
party from taking a position in one legal proceeding which is contrary
to that which he or she took in a prior proceeding, simply because his
or her interests have changed (see Festinger v Edrich, 32 AD3d 412).
The doctrine will be applied where the party has secured a judgment in
his or her favor by adopting a certain position in the prior proceeding
(see Matter of One Beacon Ins. Co. v Espinoza, 37 AD3d 607; Matter of State Farm Mut. Auto. Ins. Co. v Allston, 300 AD2d 669).

Moreover, the issue of judicial estoppel was previously decided
on the merits by the Supreme Court in an order dated December 7, 2006 (see Tedesco v Tedesco, 13 Misc 3d 1245[A]).
Tedesco, Sr.'s appeal from that order was dismissed for failure to
perfect. The dismissal of that appeal constituted an adjudication on
the merits with respect to all issues which could have been reviewed
therein (see Tri-State Sol-Aire Corporation v Martin Assoc., Inc., 7 AD3d 514). The court's finding of judicial estoppel is therefore law of the case (see Brownrigg v New York City House. Auth., 29 AD3d 721).

Tedesco, Sr.'s contention that the motion for summary judgment
was premature is without merit. He failed to offer any evidentiary
basis to suggest that discovery may lead to relevant evidence. His hope
and speculation that evidence sufficient to defeat the motion might be
uncovered during discovery was an insufficient basis to deny the motion
(see Brewster v Five Towns Health Care Realty Corp., 59 AD3d 483; Conte v Frelen Assoc., LLC, 51 AD3d 620).

Discovery: CPLR § 3126 ;R. 3124 & 22 NYCRR § 202.7; Spoilation & Waiver & a little CPLR R. 3212(a)

CPLR § 3126 Penalties for refusal to comply with order or to disclose

CPLR R. 3124 Failure to disclose; motion to compel disclosure

22 NYCRR § 202.7 Calendaring of Motions; Uniform Notice of Motion Form; Affirmation of Good Faith
(a)(2)

Holland v W.M. Realty Mgt., Inc., 2009 NY Slip Op 05844 (App. Div., 2nd, 2009)

Under the common-law doctrine of spoliation, when a party
negligently loses or intentionally destroys key evidence, the
responsible party may be sanctioned under CPLR 3126 (see Ingoglia v Barnes & Noble Coll. Booksellers, Inc., 48 AD3d 636, 637; Baglio v St. John's Queens Hosp., 303
AD2d 341, 342). However, striking a pleading as a sanction for
spoliation is appropriate only where the missing evidence deprives the
moving party of the ability to establish his or her claim or defense (see Enstrom v Garden Place Hotel, 27 AD3d 1084, 1086; Iannucci v Rose, 8 AD3d 437, 438; Baglio v St. John's Queens Hosp., 303 AD2d at 342).

The Supreme Court has broad discretion in determining what, if any, sanction should be imposed for the spoliation of evidence (see Iannucci v Rose, 8 AD3d at 438; Allstate Ins. Co. v Kearns, 309 AD2d 776; Puccia v Farley, 261
AD2d 83, 85). We should substitute our judgment for that of the Supreme
Court only if its discretion was exercised improvidently (see Melendez v City of New York, 2 AD3d 170, 170-171).

A motion for leave to renew "shall be based upon new facts not
offered on the prior motion that would change the prior determination"
(CPLR 2221[e][2]) and "shall contain reasonable justification for the
failure to present such facts on the prior motion" (CPLR 2221[e][3]).
However, it is within a court's discretion to grant leave to renew upon
facts known to the moving party at the time of the original motion (see J.D. Structures v Waldbaum, 282 AD2d 434, 435).

Under the peculiar facts of this action, the Supreme Court
should have granted that branch of the plaintiffs' motion which was for
leave to renew his earlier opposition, and, upon renewal, the prior
order of preclusion should have been vacated. It was uncontested that
the mold samples taken in 2002 had a testable "shelf life" of only six
months. That being the case, the destruction of the swabbed mold
samples caused no prejudice to the defendant inasmuch as those samples
had quickly and naturally lost their testable value (see Bannon v Auerbach, 6 Misc 3d 219,
220-221). The defendant, having been put on notice of the plaintiffs'
claims beginning in December 2001, could have obtained its own mold
samples in 2002, but did not do so. Moreover, the wood sample taken
from the apartment has been recently located, for reasons adequately
explained in the plaintiffs' renewal papers.

Jennosa v Vermeer Mfg. Co., 2009 NY Slip Op 05845 (App. Div., 2nd, 2009)

Moreover, under the circumstances of this case, Governale's loss of the
undeveloped film of the post-accident scene did not warrant the Supreme
Court's determination that he was precluded from offering certain
evidence at trial and allowing an adverse inference charge against him.
"When a party negligently [loses] or intentionally destroys key
evidence, thereby depriving the non-responsible party from being able
to prove its claim or defense, the responsible party may be sanctioned
by the striking of its pleading" (Utica Mut. Ins. Co. v Berkoski Oil Co., 58 AD3d 717,
718). However, "where the evidence lost is not central to the case or
its destruction is not prejudicial, a lesser sanction, or no sanction,
may be appropriate" (Klein v Ford Motor Co., 303 AD2d 376, 377).
Contrary to the plaintiff's contentions, the post-accident photographs
that were lost by Governale were not central to the case, and the loss
did not prejudice the plaintiff in opposing Governale's motion for
summary judgment, or otherwise. The plaintiff himself testified that he
inspected the premises prior to commencing his work and that the
underground hose only became visible after it was entangled in the
stump grinder. Thus, any contention that the post-accident photographs
would have depicted conditions demonstrating that Governale had
constructive notice of the alleged dangerous condition is speculative.
Under these circumstances, Governale's loss of the post-accident
photographs did not warrant the imposition of a sanction.

Jones v Grand Opal Constr. Corp., 2009 NY Slip Op 05748 (App. Div., 2nd, 2009)

The defendants waived their right to conduct physical examinations
of the plaintiffs by their failure to arrange for such examinations
within the 45-day period set forth in the parties' preliminary
conference order (see Rodriguez v Sau Wo Lau, 298 AD2d 376; James v New York City Tr. Auth., 294 AD2d 471, 472; Schenk v Maloney, 266
AD2d 199, 200), and by their failure to move to vacate the note of
issue within 20 days after service of it and the certificate of
readiness (see 22 NYCRR 202.21[e]; James v New York City Tr. Auth., 294 AD2d 471, 472; Schenk v Maloney, 266 AD2d 199, 200; Williams v Long Is. Coll. Hosp., 147
AD2d 558, 559). However, under certain circumstances and absent a
showing of prejudice to the opposing party, the court may exercise its
discretion to relieve a party of a waiver of the right to conduct a
physical examination (see Barbosa v Capolarello, 52 AD3d 629; Cespuglio v SA Bros. Taxi Corp., 44 AD3d 697, 698; Williams v Long Is. Coll. Hosp., 147 AD2d 559, 559; Kanterman v Palmiotti, 122
AD2d 116). Here, the plaintiffs served a note of issue and statement of
readiness 10 days after the expiration of the time period set forth in
the preliminary conference order for conducting physical examinations
of the plaintiffs and five months prior to the date in said order for
filing a note of issue. Within seven days after the plaintiffs
prematurely filed a note of issue, the defendants designated an
orthopedist and a neurologist to examine the plaintiffs. Thereafter,
the defendants promptly made the instant motion, inter alia, to compel
the plaintiffs to submit to physical examinations. No prejudice to the
plaintiffs has been shown by reason of the short delay, since the case
will be retained on the trial calendar (see Williams v Long Is. Coll. Hosp., 147 AD2d 558, 560; Kanterman v Palmiotti, 122 AD2d 116, 117). Accordingly, the Supreme Court providently exercised its discretion in relieving the defendants of [*2]their
waiver and in granting that branch of the defendants' motion which was
to compel the plaintiffs to submit to physical examinations.

The Supreme Court providently exercised its discretion in
granting that branch of the defendants' motion which was for leave to
extend their time to move for summary judgment to the extent of
permitting such motion no later than 45 days after the completion of
physical examinations, since there was significant discovery
outstanding at the time the note of issue was filed (see CPLR 3212[a]; Gonzalez v 98 Mag Leasing Corp., 95 NY2d 124; Marks v Mode, 53 AD3d 533; Sclafani v Washington Mut., 36 AD3d 682; Herrera v Felice Realty Corp., 22 AD3d 723, 724).

Molyneaux v City of New York, 2009 NY Slip Op 05610 (App. Div., 1st, 2009)

The court improperly granted plaintiffs' CPLR 3126 motion in the
absence of the required affirmation by their attorney that the latter
had conferred with defendants' attorney in a good faith effort to
resolve the issues raised by the motion (22 NYCRR 202.7[a][2]; see Cerreta v New Jersey Tr. Corp.,
251 AD2d 190 [1998]). In addition, there was also no clear showing that
any failure by the City to comply with the conditional order was
willful, contumacious or in bad faith (see Reidel v Ryder TRS, Inc., 13 AD3d 170, 171 [2004]).

Defendants represent in their brief that they "recently filed a
stipulation withdrawing [their] appeal from the August [10] 2007 Order"
denying their cross motion seeking, inter alia, renewal of their motion
for summary judgment; such withdrawal apparently was in response to [*2]such
leave having been granted during the pendency of the appeal. The
stipulation, however, is not on file with the Clerk of this Court.
Accordingly, we deem the appeal from the August 10, 2007 order
abandoned, and dismiss it.

The bold is mine.

CPLR R. 3212; Watch your Stip (2nd to last decision)

CPLR R. 3212 Motion for summary judgment
(f) Facts unavailable to opposing party

Baines v G&D Ventures, Inc., 2009 NY Slip Op 05735 (App. Div., 2nd, 2009)

A defendant may be held liable for a slip-and-fall incident
involving snow and ice on its property upon a showing that, among other
things, the defendant had actual or constructive notice of the
allegedly dangerous condition (see Taylor v Rochdale Vil., Inc., 60 AD3d 930; Raju v Cortlandt Town Ctr., 38 AD3d 874).
Thus, "[o]n a motion for summary judgment to dismiss the complaint
based upon lack of notice, the defendant is required to make a prima
facie showing affirmatively establishing the absence of notice as a
matter of law" (Goldman v Waldbaum, Inc., 248 [*2]AD2d 436, 437). This burden cannot be satisfied merely by pointing out gaps in the plaintiff's case, as the defendant did here (see Totten v Cumberland Farms, Inc., 57 AD3d 653; South v K-Mart Corp., 24 AD3d 748).
In support of its motion, the defendant submitted the deposition
testimony of its president, who allegedly inspected the premises on an
"almost" daily basis. However, the defendant's president failed to
provide any testimony as to when he last inspected the subject sidewalk
prior to the accident or what it looked like when he last inspected it.
Further, the mere fact that the icy condition which allegedly caused
the plaintiff to fall was open and obvious does not preclude a finding
of liability, but rather raises an issue of fact regarding comparative
negligence (see Sewitch v Lafrese, 41 AD3d 695; Ettari v 30 Rampasture Owners, Inc., 15 AD3d 611).

Accordingly, the defendant failed to meet its initial burden as
the movant, and the Supreme Court should have denied its motion for
summary judgment dismissing the complaint insofar as asserted against
it. Since the defendant did not meet its initial burden, we need not
review the sufficiency of the plaintiff's opposition papers (see Winegrad v New York Univ. Med. Ctr., 64 NY2d 851).

Financial Freedom Senior Funding Corp. v Rose, 2009 NY Slip Op 05745 (App. Div., 2nd, 2009)

There was no need to join the estate of the now-deceased mortgagor,
the father of the respondents Steven Rose and Debra Rosenberg, as it
appears that he died intestate and the complaint does not seek a
deficiency judgment (see Countrywide Home Loans, Inc. v Keys, 27 AD3d 247; Winter v Kram, 3 AD2d 175).

However, the Supreme Court properly denied summary judgment to
the plaintiff, although the motion should have been denied without
prejudice to renewal upon completion of discovery. The respondents
alleged that the now-deceased mortgagor was incompetent when he
executed the subject loan, and that the plaintiff knew or should have
known of the incompetence, which, if both facts are proven, would
constitute a basis to void this transaction (see Ortelere v Teachers' Retirement Bd., 25 NY2d 196; Matter of Loretta I., 34 AD3d 480; see generally Peterson v Spartan Ind., 33 NY2d 463, 465-466; Matter of People v Jaguar Sales, LLC, 61 AD3d 872; Benfeld v Fleming Props, LLC, 38 AD3d 814; Ying Jun Chen v Lei Shi, 19 AD3d 407).
Since the respondent Steven Rose set out a sufficient basis for his
inability to include medical evidence as to the decedent's mental
capacity in his opposition papers, further discovery was warranted.

Woods v 126 Riverside Dr. Corp., 2009 NY Slip Op 05634 (App. Div., 1st, 2009)

Insofar as plaintiffs claim that the motion was premature, they failed
to show that facts essential to the motion were in defendants'
exclusive knowledge or that discovery might lead to facts relevant to
the issues (see Voluto Ventures, LLC v Jenkens & Gilchrist Parker Chapin LLP, 44 AD3d 557
[2007]). Since plaintiffs were relying on statements they claim were
made to them by defendants' representatives, such facts were not within
defendants' exclusive knowledge.

Corchado v City of New York, 2009 NY Slip Op 05642 (App. Div., 1st, 2009)

The parties' so-ordered stipulation clearly provided that summary
judgment motions were "to be filed" within 60 days of the filing of the
note of issue. Since the note of issue was filed on October 24, 2007,
summary judgment motions were to be filed by December 23, 2007. While
Hallen served its motion on December 21, 2007, it did not file the
motion until January 4, 2008. Plaintiff's opposition asserted the
untimeliness of Hallen's motion, to which Hallen replied that its
motion was timely because served within 90 days of the filing of the
note of issue. We reject Hallen's argument that CPLR 3212(a) authorizes
a court to set a deadline only for the making, i.e., service, not the
filing, of summary judgment motions (see e.g. Corbi v Avenue Woodward Corp.,
260 AD2d 255, 255 [1999]) because the parties, with the court's
consent, were free to chart a procedural course that deviated from the
path established by the CPLR (see Katz v Robinson Silverman Pearce Aronsohn & Berman LLP,
277 AD2d 70, 73 [2000] ["Parties are afforded great latitude in
charting their procedural course through the courts, by stipulation or
otherwise"] [internal citations omitted]). Thus, we affirm the denial
of Hallen's motion as untimely since Hallen offered no excuse for the
late filing (see Brill v City of New York, 2 NY3d 648, 652 [2004]), and we decline to consider Hallen's contention that good cause exists to [*2]consider
the motion because the parties misread the so-ordered stipulation and
believed that the 60-day deadline applied to the serving, not the
filing, of summary judgment motions. That contention was raised
improperly for the first time on appeal. In view of the foregoing, we
decline to reach the merits of Hallen's motion.

Not something you see very often.

Braudy v Best Buy Co., Inc., 2009 NY Slip Op 05499 (App. Div., 2nd, 2009)

"To meet its initial burden on the issue of lack of constructive
notice, the defendant must offer some evidence as to when the area in
question was last cleaned or inspected relative to the time when the
plaintiff fell" (Birnbaum v New York Racing Assn., Inc., 57 AD3d 598,
598-599). Since the defendant failed to do so here, the Supreme Court
correctly denied the defendant's motion without regard to the
sufficiency of the plaintiff's opposition papers (see Winegrad v New York Univ. Med. Ctr., 64 NY2d 851, 852).

The bold is mine.

Parol Evidence

Beagle Developers, LLC v Long Is. Beagle Club #II, Inc., 2009 NY Slip Op 05258 (App. Div., 1st, 2009)

Nor were the contract's unambiguous terms modified by defendant's
attempt to accommodate plaintiff's requests for documents relating to
the merger. The contract clearly states that a waiver of any right at
one time does not waive any right at any other time, and further states
that the contract may only be modified in writing. Plaintiff cannot
negate these unambiguous terms by parol evidence (see Namad v Salomon, 74 NY2d 751, 753 [1989]; Rose v Spa Realty Assoc.,
42 NY2d 338, 343 [1977]).

The bold is mine