[App Div 1st Dept]

premature and not premature

Estate of Bachman v Hong, 2019 NY Slip Op 00977 [1st Dept. 2019]

Although discovery had not yet been taken, the motion was not premature as to liability because defendant, as the driver, has knowledge of how the accident occurred and did not show any need for discovery on that issue (see Delgado v Martinez Family Auto, 113 AD3d 426, 427 [1st Dept 2014]; Johnson v Phillips, 261 AD2d 269, 270, 272 [1st Dept 1999]; CPLR 3212[f]).
On the other hand, plaintiff failed to meet her prima facie evidence on the serious injury issue because she neglected to submit admissible evidence supporting her allegation that she suffered a fractured finger and sternum (CPLR 3212[a];Winegrad v New York Univ. Med. Ctr., 64 NY2d 851, 853 [1985]). Although plaintiff’s hospital records were submitted on reply, that did not provide defendant with any opportunity to submit medical evidence in opposition or to address whether the records supported the injuries alleged in the complaint. Further, the motion was premature because defendant had not received those documents or conducted any discovery [*2]on the serious injury issue before the motion was made (see Cruz v Skeritt, 140 AD3d 554, 555 [1st Dept 2016]; Global Mins. & Metals Corp. v Holme, 35 AD3d 93, 103 [1st Dept 2006], lv denied 8 NY3d 804 [2007]).

Condition precedent

Jeffers v American Univ. of Antigua, 2019 NY Slip Op 00987 [1st Dept. 2019]

Specifically, it is well settled that “a party to a contract cannot rely on the failure of another to perform a condition precedent where he has frustrated or prevented the occurrence of the condition” (Kooleraire Serv. & Installation Corp. v Board of Educ. of City of N.Y., 28 NY2d 101, 106 [1971]; Fairway Prime Estate Mgt., LLC v First Am. Intl. Bank, 99 AD3d 554, 557 [1st Dept 2012]).

Certificate of readiness

McKiernan v Vaccaro, 2019 NY Slip Op 00267 [1st Dept. 2019]

“Pursuant to Uniform Rules for Trial Courts, a note of issue must be accompanied by a certificate of readiness, which must state that there are no outstanding requests for discovery and the case is ready for trial” (Slovney v Nasso, 153 AD3d 962, 962; see 22 NYCRR 202.21[a], [b]; Furrukh v Forest Hills Hosp., 107 AD3d 668, 669). Here, the plaintiff’s certificate of readiness stated that significant discovery remained outstanding when the note of issue and certificate of readiness were filed. Since the certificate of readiness failed to materially comply with the requirements of 22 NYCRR 202.21, the filing of the note of issue was a nullity (see Slovney v Nasso, 153 AD3d at 962; Furrukh v Forest Hills Hosp., 107 AD3d at 669). Since the note of issue was a nullity, the plaintiff’s argument that the Supreme Court erred in permitting Mancuso to continue with discovery is without merit. Moreover, the plaintiff’s contention that counsel’s affirmation of good faith in support of Mancuso’s motion to vacate the note of issue was insufficient is without merit (see Suarez v Shapiro Family Realty Assoc., LLC, 149 AD3d 526, 527). Accordingly, we agree with the court’s determination to grant Mancuso’s motion to vacate the note of issue and to permit Mancuso to conduct certain discovery.

Mordekai v City of New York, 2019 NY Slip Op 00431 [2d Dept. 2019]

We agree with the Supreme Court’s denial of that branch of the plaintiff’s cross motion which was, in effect, to impose a sanction on the defendants by precluding them from relying upon certain evidence in support of their motion for summary judgment or introducing such evidence at trial. The plaintiff waived any objection to the adequacy and timeliness of the defendants’ disclosure of certain evidence by filing a note of issue and certificate of readiness stating that disclosure was complete and that there were no outstanding requests for disclosure (see Iscowitz v [*2]County of Suffolk, 54 AD3d 725; Melcher v City of New York, 38 AD3d 376; Simpson v City of New York, 10 AD3d 601). In any event, the plaintiff did not make a showing of willful and contumacious conduct on the part of the defendants, nor did the plaintiff demonstrate that he would be substantially prejudiced by the post-note of issue disclosure of the evidence (see Iscowitz v County of Suffolk, 54 AD3d at 725).

Questioning on a matter ruled inadmissible and sanctions

Banks-Dalrymple v Chang, 2019 NY Slip Op 00367 [1st Dept. 2019]

Although the Court did not abuse its discretion in declaring a mistrial for defendant’s counsel’s violation of the court’s in limine ruling, we find that a curative instruction, together with a striking of the impermissible parts of the record, would have sufficed. Accordingly, having declared the mistrial, it was a proper exercise of the court’s discretion to sanction defendants’ counsel, for its prejudicial questioning of plaintiff on a matter ruled inadmissable (Rules of Chief Admin of Cts [22 NYCRR] § 130-1.1; Pickens v Castro, 55 AD3d 443, 444 [1st Dept 2008]). We, however, reduce the sanctions and direct that upon receipt of proof of payment to plaintiff’s experts, defendant’s counsel must reimburse plaintiff’s counsel within 10 days.

Obstfeld v Thermo Niton Analyzers, LLC, 2019 NY Slip Op 00609 [2d Dept. 2019]

Since the plaintiffs have raised arguments on this appeal that appear to be “completely without merit in law and cannot be supported by a reasonable argument for an extension, modification or reversal of existing law” (22 NYCRR 130-1.1[c][1]), the appeal may be frivolous (see Carbone v US Bank N.A., 156 AD3d 678, 680; Curet v DeKalb Realty, LLC, 127 AD3d 914, 916; Caplan v Tofel, 65 AD3d 1180, 1181-1182). Accordingly, we direct the submission of affirmations or affidavits on the issue of whether, and in what amount, costs or sanctions in connection with this appeal should or should not be imposed on the plaintiffs.

Social Media

Vasquez-Santos v Mathew, 2019 NY Slip Op 00541 [1st Dept. 2019]

Private social media information can be discoverable to the extent it “contradicts or conflicts with [a] plaintiff’s alleged restrictions, disabilities, and losses, and other claims” (Patterson v Turner Const. Co., 88 AD3d 617, 618 [1st Dept 2011]). Here, plaintiff, who at one time was a semi-professional basketball player, claims that he has become disabled as the result of the automobile accident at issue, such that he can no longer play basketball. Although plaintiff testified that pictures depicting him playing basketball, which were posted on social media after the accident, were in games played before the accident, defendant is entitled to discovery to rebut such claims and defend against plaintiff’s claims of injury. That plaintiff did not take the pictures himself is of no import. He was “tagged,” thus allowing him access to them, and others were sent to his phone. Plaintiff’s response to prior court orders, which consisted of a HIPAA authorization refused by Facebook, some obviously immaterial postings, and a vague affidavit claiming to no longer have the photographs, did not comply with his discovery obligations. The access to plaintiff’s accounts and devices, however, is appropriately limited in time, i.e., only those items posted or sent after the accident, and in subject matter, i.e., those items discussing or showing defendant engaging in basketball or other similar physical activities (see Forman v Henkin, 30 NY3d 656, 665 [2018]; see also Abdur-Rahman v Pollari, 107 AD3d 452, 454 [1st Dept 2013]).

Bad Faith: Consequential Damages

D.K. Prop., Inc. v National Union Fire Ins. Co. of Pittsburgh, Pa., 2019 NY Slip Op 00347 [1st Dept. 2019]

A plaintiff may sue for consequential damages resulting from an insurer’s failure to provide coverage if such damages (“risks”) were foreseen or should have been foreseen when the contract was made (Bi-Economy Mkt, Inc. v Harleysville Ins. Co. of N.Y., 10 NY3d 187, 192 [2008]). Although proof of such consequential damages will ultimately rest on what liability the insurer is found to have “assumed consciously,” or from the plaintiff’s point of view, have warranted the plaintiff to reasonably suppose the insurer assumed when the insurance contract was made, a determination of whether such damages were, in fact, forseeable should not be decided on a motion to dismiss and must await a fully developed record (see Panasia Estates, Inc. v Hudson Ins. Co., 10 NY3d 200, 203 [2008]; see also Bi-Economy at 192). In other words, the inquiry is not whether plaintiff will be able to establish its claim, but whether plaintiff has stated a claim.
Here, plaintiff’s allegations meet the pleading requirements of the CPLR with respect to consequential damages, whether in connection with the first cause of action or the second cause of action for breach of the covenant of good faith and fair dealing in the context of an insurance contract (id.). Contrary to defendant’s claim, there is no heightened pleading standard requiring plaintiff to explain or describe how and why the “specific” categories of consequential damages alleged were reasonable and forseeable at the time of contract. There is no heightened pleading requirement for consequential damages (Panasia Estates Inc. v Hudson Ins. Co., 68 AD3d 530, 530 [1st Dept 2009], affd 10 NY3d 200 [2008], citing Bi-Economy 10 NY3d at 192). Furthermore, an insured’s obligation to “take all reasonable steps to protect the covered property from further damage by a covered cause of loss” supports plaintiff’s allegation that some or all the alleged damages were forseeable (Benjamin Shapiro Realty Co. v Agricultural Ins. Co., 287 AD2d 389, 389-390 [1st Dept 2001]).
As noted by the Court of Appeals in Bi-Economy, a claim for breach of contract and one for bad faith handling of an insurance claim are not necessarily duplicative (id. at 191). The first and second causes of action plead different conduct by defendant and, in any event, defendant did not cross-appeal with respect to Supreme Court’s denial of its motion to dismiss the bad faith claim on the basis of duplication.

legal impossibility and injunctions

AmBase Corp. v Spruce Capital Partners LLC, 2019 NY Slip Op 00352 [1st Dept. 2019]

Insofar as plaintiffs seek a preliminary injunction, that remedy is “a legal impossibility,” and the appeal is moot (Divito v Farrell, 50 AD3d 405, 406 [1st Dept 2008]; see Currier v First Transcapital Corp., 190 AD2d 507, 508 [1st Dept 1993] [“an injunction may not issue to prohibit a fait accompli“]). The strict foreclosure that plaintiffs sought to enjoin occurred more than a year ago, in late August or early September 2017, and we denied plaintiffs’ motion for a stay, pending this appeal, of so much of the order as dissolved the TRO that had been granted (see 2018 NY Slip Op 61540[U] [Jan. 18, 2018]).
Plaintiffs’ request for a declaratory judgment is not moot, because plaintiff 111 West 57th Investment LLC (Investment) might be entitled to damages from defendant 111 W57 Mezz Investor LLC (Junior Mezz Lender) if it is judicially determined that Investment had the right to object to the strict foreclosure pursuant to Uniform Commercial Code (UCC) § 9-620(a)(2)(B) (see Saratoga County Chamber of Commerce v Pataki, 100 NY2d 801, 812 [2003], cert denied 540 US 1017 [2003])^[FN1]. However, the complaint, as currently pleaded, mentions neither damages nor a constructive trust. Similarly, the complaint does not allege that the Spruce defendants acted in bad faith because they colluded with other defendants who are not party to this appeal or that Investment was entitled to object to the strict foreclosure under UCC 9-621(a)(1). As plaintiffs recognize, they need to replead or amend. As the order appealed from does not show that the dismissal was with prejudice, in and of itself, it does not prevent plaintiffs from moving for leave to amend or supplement the complaint.

The bold is mine.

CWCapital Cobalt VR Ltd. v CWCapital Invs. LLC, 2019 NY Slip Op 00408 [1st Dept. 2019]

The court did not abuse its discretion in denying a preliminary injunction (Nobu Next Door, LLC v Fine Arts Hous., Inc., 4 NY3d 839, 840 [2005]). Plaintiff did not establish a likelihood of success on the merits, because, even without addressing the various questions surrounding plaintiff’s authority under the agreements, it did not take the requisite steps to remove and replace respondents as control class representative and special servicer under the indenture and collateral management agreement (CPLR 6301). Moreover, plaintiff has not shown that it will suffer irreparable harm absent injunctive relief, since the alleged harm would be compensable with monetary damages (id.). Finally, a balance of the equities does not weigh in plaintiff’s favor (Nobu at 839).

Not lost in translation

Watabe v Ci:Labo USA, Inc., 2019 NY Slip Op 00354 [1st Dept. 2019]

The court correctly found, upon renewal, that plaintiffs Sugioka’s and Otani’s affidavits in opposition to defendant’s motion were admissible. The fact that Sugioka and Otani, as well the other plaintiffs, testified at a deposition with the assistance of a Japanese translator does not preclude them from drafting their affidavits in English, and, accordingly, their affidavits did not need to be accompanied by an affidavit by a Japanese translator. Otani’s affidavit that was personally served on defendant was not otherwise inadmissible on the ground that it contained an electronic signature (State Technology Law § 304[2]).

3212(f)

Reid v City of New York, 2019 NY Slip Op 00178 [1st Dept 2019]

The injured plaintiff alleges that he tripped on a defect on a landing and fell down a staircase while residing in a hotel used as transitional housing for homeless families. Defendant Aguila argues it did not owe any duty of care to plaintiff because, at the time of the accident, it did not occupy, control or make special use of the premises (see Balsam v Delma Eng’g Corp., 139 AD2d 292, 296-297 [1st Dept 1988], app dismissed in part, denied in part 73 NY2d 783 [1988]). However, the evidence submitted by Aguila in support of its motion, including a contract between Aguila and the City, was insufficient to demonstrate it lacked “any authority to maintain or control the area in question, or to correct any unsafe condition” (Gibbs v Port Auth. of N.Y., 17 AD3d 252, 254 [1st Dept 2005]; cf. Jackson v Board of Educ. of City of N.Y., 30 AD3d 57, 60 [1st Dept 2006]). Although Aguila’s employee testified that co-defendant Lades Group was solely responsible for maintenance, that employee did not know who owned the premises and neither she nor the City’s witness was personally familiar with the contract, if any, under which Aguila operated at the premises at the time of the accident. Thus, Aguila failed to meet its prima facie burden on the motion for summary judgment (see Alvarez v Prospect Hosp., 68 NY2d 320, 324 [1986]). The motion court also properly denied the motion on the alternate basis that the motion was premature because neither Aguila nor defendant City had provided full responses to discovery demands pertinent to the issues of ownership, control and maintenance of the premises (CPLR 3212[f]; Marabyan v 511 W. 179 Realty Corp., 165 AD3d 581 [1st Dept 2018]).

The bold is mine.

5015 and 22 NYCRR 202.27

Diaz v Perlson, 2019 NY Slip Op 00194 [1st Dept. 2019]

“A motion to vacate a dismissal for failure to appear at a scheduled court conference (22 NYCRR 202.27) must be supported by a showing of reasonable excuse for the failure to attend the conference and a meritorious cause of action” (Biton v Turco, 88 AD3d 519, 519 [1st Dept 2011]). Even assuming that plaintiff set forth a reasonable excuse for the failure to appear at the conference, the court providently exercised its discretion in denying the motion since plaintiff failed to show a meritorious cause of action (see e.g. Barclay v Etim, 129 AD3d 591 [1st Dept 2015], lv dismissed 28 NY3d 948 [2016]).

Thomas v Karen’s Body Beautiful LLC, 2019 NY Slip Op 00241 [1st Dept. 2019]

We find that the motion court correctly determined that the affidavits constituted mere conclusory denials, which were insufficient to raise an issue of fact as to proper service. (Grinshpun v Borokhovich, 100 AD3d 551, 552 [1st Dept 2012], lv denied 21 NY3d 857 [2013]; Colebrooke Theat. LLP v Bibeau, 155 AD3d 581, 581 [1st Dept 2017], lv dismissed 31 NY3d 1137 [2018]; Reliable Abstract Co., LLC v 45 John Lofts, LLC, 152 AD3d 429, 429 [1st Dept 2017], lv dismissed 30 NY3d 1056 [2018]).