[App Div 1st Dept]

Join em if ya got em AND when does a day end

Matter of Stephen & Mark 53 Assoc. LLC v New York City Dept. of Envtl. Protection, 2019 NY Slip Op 00072 [1st Dept. 2019]

This Court affirms the dismissal of the proceeding on an alternative basis argued to but not reached by the motion court (see Chanin v Machcinski, 139 AD3d 490 [1st Dept 2016]). Petitioner’s failure to join as a party the condominium board, which installed the backflow prevention device in dispute, constitutes a failure to join a necessary party (see Matter of Ferrando v New York City Bd. of Stds. & Appeals, 12 AD3d 287, 288 [1st Dept 2004]). Since the applicable statutory period has expired and the condominium board can no longer be joined, and proceeding in its absence would potentially be highly prejudicial to it, the proper remedy is dismissal of the proceeding rather than joinder of the condominium board (id.; see also CPLR 1001 and 1003).
The proceeding was also properly dismissed against respondent Department of Health for the independent reason that it did not make any final determination within the meaning of article 78 (see CPLR 7801[1], 7803[3]; Matter of Best Payphones, Inc. v Department of Info. Tech. & Telecom. of City of N.Y., 5 NY3d 30, 34 [2005]).
In view of the foregoing, we need not reach the issue of whether the proceeding was timely commenced because a filing made at midnight should be considered as having been made on the day leading up to the midnight. We note, however, that there is conflicting authority regarding whether a day ends at midnight, begins at midnight, or both ends and begins at midnight, and the parties have not cited to any cases involving the precise situation at issue here.

Severed

Drir v U-9 Rest. Assoc., Inc., 2019 NY Slip Op 00079 [1st Dept. 2019]

The motion court providently exercised its discretion in severing the third-party actions, based on the record before it, which reflected that discovery in the main action was complete and discovery in the second third-party action had barely commenced, and that plaintiff would be prejudiced by a delay in further discovery due to a 180-day stay of a liquidation and/or reorganization proceeding involving the insurer for the second third-party defendants (see Golden v Moscowitz, 194 AD2d 385 [1st Dept 1993]; Weber v Baccarat, Inc., 70 AD3d 487 [1st Dept 2010]). Defendants/second third-party plaintiffs retain their right of contribution, which they can exercise, if necessary, upon resolution of the liquidation/reorganization proceeding (see Kharmah v Metropolitan Chiropractic Ctr., 288 AD2d 94 [1st Dept 2001]; Moy v St. Vincent’s Hosp. & Med. Ctr. of N.Y., 92 AD3d 651 [2d Dept 2012]).

Relation back: CPLR 203(f)

Ramirez v Elias-Tejada, 2019 NY Slip Op 00021 [1st Dept. 2019]

CPLR 203(f) is a codification of the relation back doctrine (O’Halloran v Metropolitan Transp. Authority, 154 AD3d 83, 86 [1st Dept 2017]). It provides that “[a] claim asserted in an amended pleading is deemed to have been interposed at the time the claims in the original pleading were interposed, unless the original pleading does not give notice of the transactions [or] occurrences . . . to be proved pursuant to the amended pleading” (CPLR 203[f]; see also Giambrone v Kings Harbor Multicare Ctr., 104 AD3d 546, 548 [1st Dept 2013]). Application of the relation back doctrine allows a plaintiff to “correct a pleading error—by adding either a new claim or a new party—after the statutory limitations period has expired” (Buran, 87 NY2d at [*3]177). Where, as here, a plaintiff seeks to add new defendants, not just assert more claims against defendants already in the action, the following three conditions must be met before claims against one defendant may relate back to claims against another:
“(1) both claims arose out of same conduct, transaction or occurrence; (2) the new party is united in interest’ with the original defendant, and by reason of that relationship can be charged with such notice of the institution of the action that he will not be prejudiced in maintaining his defense on the merits and (3) the new party knew or should have known that, but for a[] … mistake by plaintiff as to the identity of the proper parties, the action would have been brought against him as well” (id. at 178 [internal quotation marks omitted]).
***
Ramirez and Peralta failed to submit proof in admissible form entitling them to summary judgment on the threshold issue of serious injury, because the medical records they submitted were not sworn or certified (CPLR 4518[c]). In addition, their cross motion was untimely, and serious injury was not the subject of a timely motion (see Filannino v Triborough Bridge & Tunnel Auth., 34 AD3d 280, 281-282 [1st Dept 2006], appeal dismissed 9 NY3d 862 [2007]). As to liability, Ramirez and Peralta’s argument is merely that they were not culpable. Although lack of culpable conduct also was not the subject of a timely motion, and although Ramirez and Peralta are not entitled to summary judgment on the issue of defendants’ negligence, we grant these plaintiffs summary judgment on the limited issue of their lack of culpable conduct, because defendants do not dispute that as innocent passengers they were not at fault in the happening of the accident (see Oluwatayo v Dulinayan, 142 AD3d 113, 115 [1st Dept 2016]).

CPLR 202: Borrowing Statute

Soloway v Kane Kessler, PC, 2019 NY Slip Op 00026 [1st Dept. 2019]

The court correctly found the complaint time-barred under CPLR 202, New York’s “borrowing statute,” which requires a claim to be timely under both the New York limitations period and that of the jurisdiction where the claim is alleged to have arisen (Kat House Prods., LLC v Paul, Hastings, Janofsky & Walker, LLP, 71 AD3d 580 [1st Dept 2010]).

Discovery

Harris v Kay, 2019 NY Slip Op 00044 [1st Dept. 2019]

The court did not abuse its discretion in striking the complaint, given plaintiff’s repeated, willful and contumacious refusals to provide discovery and to comply with court’s orders over an approximately eight-year period (see McHugh v City of New York, 150 AD3d 561, 562 [1st Dept 2017]; Fish & Richardson, P.C. v Schindler, 75 AD3d 219, 221-222 [1st Dept 2010]; see generally Merrill Lynch, Pierce, Fenner & Smith, Inc. v Global Strat Inc., 22 NY3d 877, 880 [2013]). Even if plaintiff’s response to defendants’ first set of interrogatories could be considered “timely” pursuant to the court’s August 28, 2013 order, despite that the interrogatories were served more than six years prior, the response certainly does not “evince[] a good-faith effort to address the requests meaningfully” (Kihl v Pfeffer, 94 NY2d 118, 123 [1999]).

Brown v Montefiore Med. Ctr., 2019 NY Slip Op 00226 [1st Dept. 2019]

The court’s September 28, 2015 order was predicated on the motion and cross motion by the defendants, the underlying issues of which had already been fully resolved by the parties’ so-ordered stipulation, dated August 4, 2015, issued after a preliminary conference. At the time of the court’s September 28th conditional preclusion order, there was no motion pending, and no request for any relief from the defendants. Given the circumstances, the court should have granted plaintiff’s motion to vacate the judgment. However, this in no way condones plaintiff’s counsel’s clearly dilatory behavior, which, based on the pattern evinced by the record, was willful.

The bold is mine.

Hopkins v City of New York, 2019 NY Slip Op 00388 [1st Dept. 2019]

The parties suspended scheduling of the deposition of the City’s witness on January 14, 2014 when plaintiff withdrew its request for an EBT while other discovery disputes were resolved. Thus, the court orders prior to January 14, 2014 do not support the imposition of sanctions. We agree with Supreme Court that the City’s noncompliance with subsequent disclosure orders did not give rise to an inference of willful and contumacious conduct. Given that there does not appear to be an actual prejudice to plaintiff, the court was within its discretion to provide defendant with one additional opportunity to submit to depositions before striking its answer (Figueroa v City of New York, 129 AD3d 596, 597 [1st Dept 2015]).
We further note that at the time this motion was pending, the City offered to produce the witness at issue.

Williams v Suttle, 2019 NY Slip Op 00163 [2d Dept. 2019]

The drastic remedy of dismissing a complaint for a plaintiff’s failure to comply with court-ordered discovery is warranted where a party’s conduct is shown to be willful and contumacious (see Harris v City of New York, 117 AD3d 790; Almonte v Pichardo, 105 AD3d 687, 688; Arpino v F.J.F. & Sons Elec. Co., Inc., 102 AD3d 201, 210). The willful and contumacious character of a party’s conduct can be inferred from either (1) the repeated failure to respond to demands or comply with court-ordered discovery, without a reasonable excuse for these failures, or (2) the failure to comply with court-ordered discovery over an extended period of time (see Candela v Kantor, 154 AD3d 733, 734; Pesce v Fernandez, 144 AD3d 653, 654; Gutman v Cabrera, 121 AD3d 1042, 1043; Arpino v F.J.F. & Sons Elec. Co., Inc., 102 AD3d at 210).
Here, the willful and contumacious character of the plaintiffs’ actions can be inferred from their repeated failures to comply with the defendant’s notices to appear for depositions and the deadlines set forth in the compliance conference orders over an extended period of time (see Wolf v Flowers, 122 AD3d 728, 729; Matone v Sycamore Realty Corp., 87 AD3d 1113, 1114). Furthermore, the plaintiffs failed to provide an adequate explanation for their repeated failures to comply with court-ordered discovery. While the plaintiffs established that the medical condition of Lawrey, who is a resident of the State of Georgia, required her to avoid travel and that her deposition could be conducted via live video conferencing (see Duncan v 605 Third Ave., LLC, 49 AD3d 494, 496), they did not provide any explanation for their failure to produce Williams, a resident of Westchester County, for a deposition.
Contrary to the plaintiffs’ contention, the defendant, who had first noticed depositions after serving her answer, had priority of depositions (see CPLR 3106[a]; Scalone v Phelps Mem. Hosp. Ctr., 184 AD2d 65, 76-77), and the filing of an amended complaint did not automatically stay discovery.
In any event, when the plaintiffs failed to appear for depositions within the time specified in the conditional order of dismissal, the conditional order became absolute (see Corex-SPA v Janel Group of N.Y., Inc., 156 AD3d at 602; Wei Hong Hu v Sadiqi, 83 AD3d 820, 821; Matter of Denton v City of Mount Vernon, 30 AD3d 600). To be relieved of the adverse impact of the conditional order directing dismissal of the complaint, the plaintiffs were required to demonstrate a reasonable excuse for their failure to appear for depositions and that their cause of action was potentially meritorious (see Gibbs v St. Barnabas Hosp., 16 NY3d 74, 80; Kirkland v Fayne, 78 AD3d 660, 661; Lerner v Ayervais, 16 AD3d 382; Smith v Lefrak Org., 96 AD2d 859, affd 60 NY2d 828). The plaintiffs failed to demonstrate a reasonable excuse for their failure to appear for depositions on or before February 29, 2016.

Stipulations: CPLR 2104

Grant v Almonte, 2019 NY Slip Op 00057 [1st Dept. 2019]

The requisite formality necessary to accord an oral agreement binding effect as an “open court” stipulation under CPLR 2104 was not present when, following a pre-trial conference at which an unidentified per diem attorney appeared for plaintiff, the matter was marked “settled” in the court’s records. There was no indication of the terms of the settlement, and the agreement was never further recorded, memorialized, or filed with the County Clerk (see Velazquez v St. Barnabas Hosp., 13 NY3d 894 [2009]; Andre-Long v Verizon 31 AD3d 353, 354 [2006]; compare Harrison v NYU Downtown Hosp., 117 AD3d 479 [1st Dept 2014]).

Uncertified electronic records (judicial notice)

Gibson v U’SAgain Holdings, LLC, 2018 NY Slip Op 09012 [1st Dept. 2018]

The copies of the electronic records from the Secretary of State’s official government website were admissible despite being uncertified, and the motion court properly considered them (see Matter of LaSonde v Seabrook, 89 AD3d 132, 137 n 8 [1st Dept 2011], lv denied 18 NY3d 911 [2012]; Kingsbrook Jewish Med. Ctr. v Allstate Ins. Co., 61 AD3d 13, 19-21 [2d Dept 2009]).

Incorporated by reference [CPLR 3212]

Canty v 133 E. 79th St., LLC, 2018 NY Slip Op 09022 [1st Dept. 2018]

The court should have dismissed the common-law negligence and Labor Law § 200 claims against 133 East. The fact that 133 East had submitted only an attorney’s affirmation is not fatal to its motion, as the affirmation incorporated by reference deposition testimony of plaintiff and Spieler’s foreman, Laurence Bisso, which had been submitted by Spieler (see Carey v Five Brothers, Inc., 106 AD3d 938, 940 [2d Dept 2013]; Daramboukas v Samlidis, 84 AD3d 719, 721 [2d Dept 2011]).

Notice to Admit [CPLR 3123]

Fetahu v New Jersey Tr. Corp., 2018 NY Slip Op 08746 [1st Dept. 2018]

“A notice to admit is designed to elicit admissions on matters which the requesting party reasonably believes there can be no substantial dispute’ (CPLR 3123[a])” (National Union Fire Ins. Co. of Pittsburgh, Pa. v Allen, 232 AD2d 80, 85 [1st Dept 1997]). “[A] notice to admit may not be utilized to request admission of material issues or ultimate or conclusory facts,” or “facts within the unique knowledge of other parties” (Taylor v Blair, 116 AD2d 204, 206 [1st Dept 1986]). Rather, it is “only properly used to eliminate from trial matters which are easily provable and about which there can be no controversy” (Samsung Am. v Yugoslav-Korean Consulting & Trading Co., 199 AD2d 48, 49 [1st Dept 1993]). Further, because a notice to admit “is not intended as simply another means for achieving discovery,” it may not be used to obtain information in lieu of other disclosure devices (see Hodes v City of New York, 165 AD2d 168, 170 [1st Dept 1991]).

Based on these principles, plaintiff’s motion to deem admitted the matters in the second notice to admit was properly denied. In this notice, plaintiff requested that defendant admit that a brochure describing the DriveCam service, and an “Event List” purportedly containing information about the subject incident, were obtained by defendant, in the ordinary course of its business, from a third party. The notice also requested that defendant admit that the Event List reflects events recorded on the day of the incident. These requests are not proper because they involve either material issues in the case or information within the unique knowledge of a third party (see Kimmel v Paul, Weiss, Rifkind, Wharton & Garrison, 214 AD2d 453 [1st Dept 1995]; Taylor, 116 AD2d at 206).
To the extent the requests seek admissions that the two documents were received in the ordinary course of defendant’s business, plaintiff could not have “reasonably believe[d],” based on the testimony of defendant’s claims manager, that there could be no “substantial dispute” on this issue (see CPLR 3123[a]; Nacherlilla v Prospect Park Alliance, Inc., 88 AD3d 770, 772 [2d Dept 2011]). Indeed, the claims manager indicated otherwise, testifying that he obtained the brochure by requesting it from a third party and compiled the Event List by conducting a search of the third party’s website.
The court properly granted a protective order with respect to Item Nos. 1-2, 14, and 16-20 in plaintiff’s third notice to admit because plaintiff could not have reasonably believed that there was no substantial dispute regarding these issues (see CPLR 3123[a]; Nacherlilla, 88 AD3d at 772). Item Nos. 16 and 19 are also improper insofar as they call for admissions of “legal conclusions” (see Kimmel, 214 AD2d at 453), and Item No. 14 is also improper insofar as it seeks information “within the unique knowledge of other parties” (Taylor, 116 AD2d at 206; see CPLR 3123[a]).
Item Nos. 4-12 and 15 were properly struck because they represented an improper “subterfuge for obtaining further discovery” post-filing of the note of issue (Ahroner v Israel Discount Bank of N.Y., 79 AD3d 481, 483 [1st Dept 2010] [internal quotation marks omitted]; see Taylor, 116 AD2d at 206). Item No. 3 was properly struck because whether defendant provided plaintiff with a document as part of discovery is not a fact relevant to the trial of this matter.
Item No. 13 should not have been struck because it is essentially undeniable based on prior testimony in this litigation.

3126

Shohat v Suky, 2018 NY Slip Op 08548 [1st Dept. 2018]

Defendants engaged in willful and contumacious conduct warranting the penalty of striking their answer (seeCPLR 3126; McHugh v City of New York, 150 AD3d 561 [1st Dept 2017]). They failed to comply with several court orders directing compliance with outstanding discovery requests by dates certain. The discovery responses they served only after plaintiff moved to strike consisted almost entirely of objections.

Spivey v City of New York, 2018 NY Slip Op 08557 [1st Dept. 2018]

The default on which the dismissal was based — plaintiff’s failure to respond to a motion to dismiss under CPLR 3126, allegedly due to his counsel’s mis-calendaring of the return date — was not an isolated mistake but part of a pervasive pattern of neglect in prosecuting this action evident from the record, including his persistent failure to satisfy discovery obligations for about a year and a half. As part of a pattern of “intentional[] and repeated[] fail[ure] to attend to [his obligations]” (Imovegreen, LLC v Frantic, LLC, 139 AD3d 539, 540 [1st Dept 2016]), the law-office failure leading to the default was not excusable.

Suarez v Dameco Indus., Inc., 2018 NY Slip Op 08576 [1st Dept. 2018]

The motion court providently exercised its discretion in granting plaintiff’s motion to strike Dameco’s answer for willful failure to comply with discovery orders (see CPLR 3126). Dameco’s counsel offered a barebones affirmation disclosing that Dameco was now defunct and claiming that counsel’s attempts to contact unnamed former officers of Dameco through an investigative service had been unsuccessful, which was insufficient to establish good-faith efforts to comply (see Cavota v Perini Corp., 31 AD3d 362, 364 [2d Dept 2006]; Hutson v Allante Carting Corp., 228 AD2d 303 [1st Dept 1996]; see also Reidel v Ryder TRS, Inc., 13 AD3d 170, 171 [1st Dept 2004]; compare Lee v 13th St. Entertainment LLC, 161 AD3d 631 [1st Dept 2018]). Although Dameco was apparently still in business when the action was commenced, defense counsel provided no explanation for Dameco’s failure to preserve any records relating to its repair, service, and maintenance of the elevator that allegedly caused plaintiff’s injuries, including inspection records that Dameco was statutorily required to prepare. In light of plaintiff’s showing of willful failure to comply, and since the complete absence of records impedes plaintiff’s ability to prove his case, the sanction of striking Dameco’s answer was appropriate under the circumstances.

Aiken v Liotta, 2018 NY Slip Op 08621 [2d Dept. 2018]

We agree with the Supreme Court’s denial of the defendant’s motion to enforce certain orders of preclusion against the plaintiff Rosemary Wiltshire pursuant to CPLR 3126 and, thereupon, for summary judgment dismissing the complaint insofar as asserted by that plaintiff. Despite Wiltshire’s delays, she substantially complied with the relevant discovery demands and orders, and the defendant failed to demonstrate that the delays were the product of willful and [*2]contumacious conduct (see Brannigan v Christie Overhead Door, 144 AD3d 959, 960; McDermott v Bahnatka, 83 AD3d 1014, 1015; LOP Dev., LLC v ZHL Group, Inc., 78 AD3d 1020, 1020; Jenkins v Proto Prop. Servs., LLC, 54 AD3d 726; Zouev v City of New York, 32 AD3d 850, 851; Passarelli v National Bank of Westchester, 81 AD2d 635, 636).