[App Div 1st Dept]

Pro se affidavit needs to be notarized

Pollack v Ovadia, 173 AD3d 464 [1st Dept. 2019]

Although pro se defendant tenant could submit an affirmation rather than an affidavit for religious reasons, the document was still required to be notarized, and therefore the motion court was constrained to reject his unnotarized affirmation (see Slavenburg Corp. v Opus Apparel, 53 NY2d 799, 801 n [1981]; see also John Harris P.C. v Krauss, 87 AD3d 469 [1st Dept 2011]).

Accordingly, the motion was not supported by affidavit or affirmation of facts, and was properly denied (CPLR 3212 [b])

3103: Protective orders

Pascual v Rustic Woods Homeowners Assn., Inc., 173 AD3d 757 [2d Dept. 2019]

CPLR 3101 (a) requires, in pertinent part, “full disclosure of all matter material and necessary in the prosecution or defense of an action.” However, the principle of “full disclosure” does not give a party the right to uncontrolled and unfettered disclosure (McAlwee v Westchester Health Assoc., PLLC, 163 AD3d 547, 548 [2018] [internal quotation marks omitted]; Ramirez v New York City Tr. Auth., 132 AD3d 653, 654 [2015]; Gilman & Ciocia, Inc. v Walsh, 45 AD3d 531, 531 [2007]).

Discovery demands are palpably improper where they seek irrelevant information, are overbroad and burdensome, or fail to specify with reasonable particularity many of the documents requested (see Jordan v City of New York, 137 AD3d 1084, 1084-1085 [2016]; H.R. Prince, Inc. v Elite Envtl. Sys., Inc., 107 AD3d 850, 850 [2013]; Matter of New York Cent. Mut. Fire Ins. Co. v Librizzi, 106 AD3d 921, 921 [2013]; Montalvo v CVS Pharm., Inc., 102 AD3d 842, 843 [2013]; Ural v Encompass Ins. Co. of Am., 97 AD3d 562, 566 [2012]). Where the discovery demands are overbroad, the appropriate remedy is to vacate the entire demand rather than to prune it (see Stepping Stones Assoc., L.P. v Scialdone, 148 AD3d 855, 856 [2017]; Berkowitz v 29 Woodmere Blvd. Owners’, Inc., 135 AD3d 798, 799 [2016]; Scorzari v Pezza, 111 AD3d 916, 916 [2013]; Bell v Cobble Hill Health Ctr., Inc., 22 AD3d 620, 621 [2005]).

Here, the discovery demands at issue were palpably improper in that they sought irrelevant information, or were overbroad and burdensome (see JPMorgan Chase Bank, N.A. v Levenson, 149 AD3d 1053, 1055 [2017]; Diaz v City of New York, 117 AD3d 777, 778 [2014]; Kamanou-Goune v Swiss Intl. Airlines, 100 AD3d 968, 969 [2012]).

MPEG LA, L.L.C. v Toshiba Am. Info. Sys., Inc., 173 AD3d 611 [1st Dept. 2019]

The motion court providently exercised its discretion by denying the motion to compel the production of documents that have no bearing on the issues in this breach of contract action (see Andon v 302-304 Mott St. Assoc., 94 NY2d 740, 745 [2000]). Moreover, the court providently determined that some of the document requests were vague and overbroad (see e.g. Lerner v 300 W. 17th St. Hous. Dev. Fund Corp., 232 AD2d 249 [1st Dept 1996])

Kim & Bae, P.C. v Sunki Lee, 173 AD3d 990 [2d Dept. 2019]

Contrary to the plaintiffs’ contention, the Supreme Court did not improvidently exercise its discretion in denying their motion to extend the time to complete discovery and to file the note of issue. Pursuant to CPLR 2004, “[e]xcept where otherwise expressly prescribed by law, the court may extend the time fixed by any statute, rule or order for doing any act, upon such terms as may be just and upon good cause shown, whether the application for extension is made before or after the expiration of the time fixed.” The grant of such an extension of time is addressed to the sound discretion of the trial court (see Tewari v Tsoutsouras, 75 NY2d 1, 11 [1989]; Oliver v Town of Hempstead, 68 AD3d 1079, 1080 [2009]; Carota v Massapequa Union Free School Dist., 272 AD2d 428, 428 [2000]). In exercising its discretion, a court may consider such factors as the length of the delay, the reason or excuse for the delay, and any prejudice to the party opposing the motion (see Tewari v Tsoutsouras, 75 NY2d at 11-12; U.S. Bank N.A. v Adler, 148 AD3d 858 [2017]; Siracusa v Fitterman, 110 AD3d 1055, 1056 [2013]).

Here, the record supports the Supreme Court’s determination to deny the plaintiffs’ request for an extension of time. A motion for a protective order only stays disclosure of the particular matter in dispute, not all discovery (see CPLR 3103 [b]; Vandashield Ltd v Isaacson, 146 AD3d 552, 556 [2017]). Thus, by filing the motion for a protective order as to certain information, the plaintiffs were not relieved of the obligation to otherwise comply with the court’s August 21, 2015, order.

However, there was no record basis for the Supreme Court to direct that the plaintiffs are precluded from offering any evidence at trial. The order dated August 21, 2015, contained a directive conditionally precluding any party from testifying at trial if that party failed to appear for a deposition as set forth in that order. As a result of the plaintiffs’ respective failures to comply with the conditional order of preclusion, that conditional order became absolute upon the plaintiffs’ noncompliance with its terms, precluding the plaintiffs from testifying at trial (see Lee v Barnett, 134 AD3d 908, 909-910 [2015]; Julien-Thomas v Platt, 133 AD3d 824, 825 [2015]; Archer Capital Fund, L.P. v GEL, LLC, 95 AD3d 800, 801 [2012]). Although the plaintiffs are, by virtue of the August 21, 2015, order, precluded from testifying at trial, that order, by its terms, does not prevent the plaintiffs from providing other evidence. No other ground for the court’s determination to prevent the plaintiffs from providing any evidence at trial appears in the record (cf. CPLR 3126). Accordingly, we modify the order appealed from by deleting so much of the order entered April 21, 2016, as directed that the plaintiffs are precluded from offering any evidence at trial.

Pursuant to CPLR 3103 (a), a court may issue a protective order denying, limiting, conditioning, or regulating the use of any disclosure device, in order “to prevent unreasonable annoyance, expense, embarrassment, disadvantage, or other prejudice to any person or the courts.” The supervision of disclosure and the setting of reasonable terms and conditions rests within the sound discretion of the trial court and, absent an improvident exercise of discretion, its determination will not be disturbed (see Noy v Noy, 160 AD3d 887 [2018]; AAA Vascular Care, PLLC v Integrated Healthcare Mgt., LLC, 99 AD3d 642 [2012]; Spodek v Neiss, 70 AD3d 810 [2010]).

Here, the affidavit of the plaintiff Bong June Kim submitted in support of that branch of the plaintiffs’ motion which was for a protective order contained only conclusory assertions that confidentiality protection was necessary (see JPMorgan Chase Funding Inc. v Cohan, 134 AD3d 455 [2015]; Linderman v Pennsylvania Bldg. Co., 289 AD2d 77, 78 [2001]). Additionally, the plaintiffs failed to demonstrate unreasonable annoyance, embarrassment, disadvantage, or prejudice to warrant the issuance of a protective order (see CPLR 3103 [a]; Noy v Noy, 160 AD3d at 887-888). Accordingly, we agree with the Supreme Court’s determination in the order dated May 17, 2016, denying that branch of the plaintiffs’ motion which was for a protective order.

Discovery mid-trial (CPLR 3102(d), law of the case, and willful refusal

Matter of Michael R. v Amanda R., 2019 NY Slip Op 06454 [2d Dept. 2019]

A party may seek additional disclosure after trial commences only by permission of the trial court on notice (CPLR 3102[d]). Here, the father never sought permission for posttrial discovery. Nor do the father’s motion papers demonstrate any reason why he should have been permitted to pursue additional discovery more than a year after trial commenced. In view of this, and the fact that the mother faced contempt penalties if she were unable to present evidence about her ability to pay, the Support Magistrate improvidently exercised his discretion in “precluding” the mother from presenting evidence and testimony that he had already admitted into evidence at trial more than a year previously.

***

Third, contrary to the Family Court’s conclusion that the mother was also barred from objecting to the amount of arrears by the doctrine of law of the case, that doctrine is only applicable to “legal determinations that were necessarily resolved on the merits in a prior decision” (J.P. Morgan Sec., Inc. v Vigilant Ins. Co., 166 AD3d 1, 8 [1st Dept 2018] [emphasis added] [internal quotation marks omitted]). Since the mother’s earlier-filed objections were denied on procedural grounds, the application of the doctrine of the law of the case did not apply under the circumstances here.

Rosenberg & Estis, P.C. v Bergos, 18 AD3d 218 [1st Dept. 2005]

The record in this attorney fee dispute discloses that defendants willfully refused or simply failed to avail themselves of the opportunity to take plaintiff’s deposition prior to the deadline set forth in the preliminary conference stipulation, and willfully refused to obtain copies of documents that defense counsel had already inspected and tagged for copying. Under these circumstances, defendants’ motion to vacate the note of issue was properly denied since the certificate of readiness correctly represented that defendants had waived any right they had to additional discovery (cf. Munoz v 147 Corp., 309 AD2d 647, 648 [2003]; Ortiz v Arias, 285 AD2d 390 [2001]).

“Manifest disregard of the law”

Matter of Reljic v Tullett Prebon Fin. Servs., LLC, 2019 NY Slip Op 01182 [1st Dept. 2019]

In holding petitioners jointly and severally liable for compensatory damages, plus attorneys’ fees and costs, the arbitrators did not act in manifest disregard of the law (see Matter of Brown & Williamson Tobacco Corp. v Chesley, 7 AD3d 368, 372 [1st Dept 2004]; Duferco Intl. Steel Trading v T. Klaveness Shipping A/S, 333 F3d 383, 385 [2d Cir 2003] [“to vacate an arbitral award on the grounds of manifest disregard of the law … we must be persuaded that the arbitrators understood but chose to disregard a clearly defined law or legal principle”]).

Discovery

O’Halloran v Metropolitan Transp. Auth., 2019 NY Slip Op 01318 [1st Dept. 2019]

The court providently exercised its discretion in granting in part plaintiff’s motion to compel discovery and ordering defendants to run searches of electronic mailboxes of defendants’ employees and to produce those documents responsive to plaintiffs’ requests (CPLR 3101[a]; 148 Magnolia, LLC v Merrimack Mut. Fire Ins. Co., 62 AD3d 486, 487 [1st Dept 2009]; see also Andon v 302-304 Mott St. Assoc., 94 NY2d 740, 745 [2000]; GoSMILE, Inc. v Levine, 112 AD3d 469 [1st Dept 2013]). The record demonstrates that plaintiff’s requests seek material and necessary information, and that her search terms, all of which were to be combined with her name or nickname or the name or nickname of a coworker she alleges was discriminated or retaliated against on similar grounds, would result in the disclosure of relevant evidence, and are reasonably calculated to lead to the discovery of relevant information.
Plaintiff’s second Supplemental Request for Production of Documents, dated November 30, 2017, seeking all complaints, discrimination-related or not, involving defendant George Menduina’s conduct from 2010 to present, sought information material and necessary to this particular lawsuit because such information was relevant not only to whether Menduina, plaintiff’s supervisor, discriminated against plaintiff, but also to whether Menduina was more qualified than plaintiff to hold the very position that plaintiff alleges she was denied for discriminatory reasons.

Fowler v Buffa, 2019 NY Slip Op 01306 [1st Dept. 2019]

The trial court did not err in precluding a disability insurance form alleged to contain a statement against interest from defendant Anurag Shrivastava, M.D. The imposition of sanctions for discovery misfeasance is a matter better left to the sound discretion of the trial court (see Gomez v New York City Hous. Auth., 217 AD2d 110, 114 [1st Dept 1995]). CPLR 3101 provides that there shall be full disclosure of all matter material and necessary in the prosecution or defense of an action, including a party’s own statements (see also Sands v News Am. Publ., 161 AD2d 30, 42 [1st Dept 1990]). Plaintiff’s disclosure of the document less than two days prior to trial was an unfair surprise for which no reasonable excuse was proffered (see Curbean v Kibel, 12 AD3d 206, 207 [1st Dept 2004]; Ward v Mehar, 264 AD2d 515, 516 [2d Dept 1999]).

credibility determined as a matter law

Carthen v Sherman, 2019 NY Slip Op 00954 [1st Dept. 2019]

Although we agree with the dissent that as a general premise “the contradictions in the testimony of the respective parties raise issues of credibility for the trier of fact to resolve,” there are rare instances where credibility is properly determined as a matter of law (see e.g. Finley v Erie & Niagara Ins Assn., 162 AD3d at 1654-1646; Loughin v City of New York, 186 AD2d 176, 177 [2d Dept 1992]). This Court is not “required to shut its eyes to the patent falsity of a [claim]” (MRI Broadway Rental v United States Min. Prods. Co., 242 AD2d 440, 443 [1st Dept 1997], affd 92 NY2d 421 [1998]).

Subpoenas — abuse of Discretion not to adjourn for appearance

Matter of Global Liberty Ins. Co. v Perez, 2019 NY Slip Op 00548 [1st Dept. 2019]

“It is an abuse of discretion to deny a continuance where the application complies with every requirement of the law and is not made merely for delay, where the evidence is material and where the need for a continuance does not result from the failure to exercise due diligence” (Balogh v H.R.B. Caterers, 88 AD2d 136, 141 [2d Dept 1982]). Here, there is no evidence that petitioner Global Liberty was dilatory in issuing subpoenas to the officer who responded to the scene or to respondent Nestor Ruben Perez, neither of whom appeared at the framed issue hearing. Nor is there any evidence that petitioner was in any way responsible for these witnesses’ failure to appear. The issue about which they would testify, i.e., whether the vehicle involved in the accident, which fled the scene, was a 2003 Subaru or a 2005 Chevrolet, is central to the issue of whether that vehicle was stolen or was driven by Flores’s ex-husband who reported it stolen. Moreover, while Flores and GEICO claim prejudice on the ground that Flores’s ex-husband has left the country, Global Liberty has made it clear that it would consent to having him testify by electronic means (cf. Yu Hui Chen v Chen Li Zhi, 109 AD3d 815 [2d Dept 2013]), a concession not addressed by Flores and GEICO or the court below.

Failure to object

Matter of Miller v City of New York, 2019 NY Slip Op 00558 [1st Dept. 2019]

Petitioner’s failure to object to the admission of a 2013 stipulation of settlement of a prior investigation waives the issue of admissibility (see Community Counseling & Mediation Servs. v Chera, 115 AD3d 589, 590 [1st Dept 2014]), and in any event, there is no evidence that the arbitrator was influenced by the stipulation in the guilt determination.

Thompson-Shepard v Lido Hall Condominiums, 2019 NY Slip Op 00576 [1st Dept. 2019]

Defendants waived their objection to the admissibility of plaintiff’s expert’s unsworn report by failing to raise it before the motion court (see Shinn v Catanzaro, 1 AD3d 195, 198 [1st Dept 2003]). However, in any event, the report does not raise a triable issue of fact (see Kane, 4 AD3d at 190; Mandel v 370 Lexington Ave., LLC, 32 AD3d 302 [1st Dept 2006]; Silva v 81st St. and Ave. A Corp., 169 AD2d 402, 404 [1st Dept 1991], lv denied 77 NY2d 810 [1991]). Plaintiff attempts to link the expert’s opinion that the staircase contained irregular and excessive riser heights with her testimony that upon arriving at the scene of the accident she saw the decedent’s leg lodged in a riser. However, her after-the-fact observation does not show that the decedent fell because of the purportedly defective riser. Moreover, insofar as the decedent’s hearsay statements cited in the expert’s report can be considered, the decedent did not say that he slipped for reasons related to the risers.

A judgment without jurisdiction is void

Board of Mgrs. of 50 W. 127th St. Condominium v Kidd, 2019 NY Slip Op 00973 [1st Dept. 2019]

Defendant did not waive the defense of lack of jurisdiction. Before her incoming counsel filed a notice of appearance without mentioning the defense, she had already presented an order to show cause seeking to vacate the judgment based on lack of personal jurisdiction, and she moved to vacate based on improper service shortly after new counsel appeared. In contrast, in the cases relied on by plaintiff and City West, the defendant’s counsel filed a notice of appearance without preserving any objection to jurisdiction after the time to move or answer had elapsed, and did not move to vacate for years afterwards, indicating an intentional abandonment of the defense (see e.g. Wilmington Sav. Fund Socy., FSB v Zimmerman, 157 AD3d 846, 846-847 [2d Dept 2018], lv denied 31 NY3d 1135 [2018]; Capital One Bank, N.A. v Farraco, 149 AD3d 590, 590 [1st Dept 2017]). Defendant’s communications with plaintiff’s managing agent in which she arranged to pay her arrears, cannot be construed as an appearance in the action, much less a waiver of her defense of lack of jurisdiction.
Because the judgment was entered without jurisdiction over defendant, City West is not entitled to restitution as an alternative remedy to vacatur of the foreclosure sale, as “[a] judgment rendered without jurisdiction is void” and “a deed [] issued in execution upon such a void judgment . . . is similarly void” (U.S. Bank, N.A. v Bernhardt, 88 AD3d 871, 872 [2d Dept 2011]).

3126 commensurate…and no further

Han v New York City Tr. Auth., 2019 NY Slip Op 00975 [1st Dept. 2019]

CPLR 3126 provides that if a party “refuses to obey an order for disclosure or wilfully fails to disclose information which the court finds ought to have been disclosed . . . , the court may make such orders with regard to the failure or refusal as are just.” It is within the motion court’s discretion to determine the nature and degree of the penalty (see Kihl v Pfeffer, 94 NY2d 118, 122 [1999]), and the sanction will remain undisturbed unless there has been a clear abuse of discretion (see Those Certain Underwriters at Lloyds, London v Occidental Gems, Inc., 11 NY3d 843, 845 [2008]). The sanction should be “commensurate with the particular disobedience it is designed to punish, and go no further than that” (Patrick M. Connors, Practice Commentaries, McKinney’s Cons Laws of NY, Book 7B, CPLR C3126:8 at 497; see also Merrill Lynch, Pierce, Fenner & Smith, Inc. v Global Strat Inc., 22 NY3d 877, 880 [2013]).