[App Div 1st Dept]

3212(f)

Rodriguez v Architron Envtl. Servs., Inc., 2018 NY Slip Op 07955 [1st Dept. 2018]

The summary judgment motion was premature and the motion court properly denied it on that basis. No discovery had been conducted before Architron moved for summary judgment; thus, plaintiff was not given a chance to depose two parties — defendants in a related action that has now been consolidated with this one — who might have knowledge concerning the relevant issues in this action (see Gonzalez v Vincent James Mgt. Co., Inc. , 306 AD2d 226 [1st Dept 2003]; La v New York Infirmary/Beekman Downtown Hosp. , 214 AD2d 425 [1st Dept 1995]).

Moreover, even if the documents that Architron submitted on its motion had sufficed to make a prima facie showing that it had completed its work at the site before plaintiff’s alleged accident, plaintiff nonetheless had an acceptable excuse for not offering any countervailing facts to oppose the motion — namely, the lack of any opportunity to conduct discovery (see Gonzalez , 306 AD2d at 226).

Haxhijaj v Ferrer, 2018 NY Slip Op 07416 [2d Dept. 2018]

In a personal injury action, a party should generally be afforded a reasonable opportunity to conduct discovery prior to the determination of a motion for summary judgment (see CPLR 3212[f]; Brea v Salvatore, 130 AD3d 956; Malester v Rampil, 118 AD3d 855, 856). Here, little discovery has taken place, and depositions of the parties have not yet occurred. Moreover, the defendant submitted evidence suggesting that further discovery might lead to relevant evidence pertaining to the circumstances of the accident (see Hawana v Carbuccia, 164 AD3d 563; Worley v Safemove Rental, 120 AD3d 667, 668). Accordingly, we will not disturb the Supreme Court’s determination to deny the plaintiff’s motion for summary judgment on the issue of liability without prejudice to renew (see Takhalov v Rottenberg, 128 AD3d 678; Amico v Melville Volunteer Fire Co., Inc., 39 AD3d 784, 785).

Experts

Salinas v World Houseware Producing Co., Ltd., 2018 NY Slip Op 07938 [1st Dept. 2018]

Where the conclusion of an expert relies upon facts contrary to the plaintiff’s testimony, the affirmation will fail to raise an issue of fact sufficient to defeat summary judgment (see Feaster-Lewis v Rotenberg, 93 AD3d 421, 422 [1st Dept 2012], lv denied 19 NY3d 803 [2012]; Wengenroth v Formula Equip. Leasing, Inc., 11 AD3d 677, 679 [2d Dept 2004]). Here, the validity of plaintiff’s experts’ opinions rely upon the assumption that the subject potholder caught fire after contacting the heating element of plaintiff’s oven, a fact plaintiff specifically denied several times during her deposition. Plaintiff was not equivocal at her deposition, nor did she seek to correct her testimony at any time thereafter.

An odd stipulation case

RCS Recovery Servs., LLC v Mensah, 2018 NY Slip Op 07766 [2d Dept. 2018]

We agree with the Supreme Court’s denial of that branch of the defendant’s motion which was pursuant to CPLR 5015(a)(3) to vacate the judgment. Absent any proof of intrinsic or extrinsic fraud in the procurement of the judgment, the defendant was not entitled to that relief (see LaSalle Bank N.A. v Oberstein, 146 AD3d 945, 945-946; Dunkin Donuts v HWT Assoc., 181 AD2d 713, 714; Central Funding Co. v Kimler, 54 AD2d 748, 748).

However, under the circumstances of this case, the Supreme Court should have granted the alternate branch of the defendant’s motion, which was, in effect, to preclude the plaintiff from enforcing the default provision of the stipulation without affording the defendant a reasonable opportunity to cure his default. “Under almost any given state of facts, where to enforce a stipulation would be unjust or inequitable or permit the other party to gain an unconscionable advantage, courts will afford relief” (Goldstein v Goldsmith, 243 App Div 268, 272; see Weitz v Murphy, 241 AD2d 547, 548; Bank of N.Y. v Forlini, 220 AD2d 377, 378).

Here, the defendant’s default was inadvertent and minor in nature when measured against the harsh result that would be obtained upon literal enforcement of the default provision in the stipulation (see Bank of N.Y. v Forlini, 220 AD2d at 378). Insofar as the plaintiff failed to offer the defendant any opportunity to cure his default before seeking to recover the full amount due under the judgment, the plaintiff’s conduct could be interpreted as an attempt to take advantage of a technical default to obtain payment of the far greater sum which the plaintiff had originally sought, but agreed to forgo as part of the settlement (compare Weitz v Murphy, 241 AD2d at 548-549 and Bank of N.Y. v Forlini, 220 AD2d at 378, with McKenzie v Vintage Hallmark, 302 AD2d 503, 504).

Compare IndyMac Bank, FSB v Izzo, 2018 NY Slip Op 08014 [2d Dept. 2018]

Full faith and credit

Repwest Ins. Co. v Country-Wide Ins. Co., 2018 NY Slip Op 06505 [1st Dept. 2018]

There is a split in authority as to whether the existence of a territory of coverage clause constitutes sufficient contact with the forum state to support specific jurisdiction. For example, while the Ninth Circuit in Farmers Ins. Exch. held that an insurer had shown purposeful availment, the court in King v American Family Mut. Ins. (632 F3d 570 [9th Cir 2011] and Hunt v Erie Ins. Group (728 F2d 1244 [9th Cir 1984]) held otherwise.

We disagree with Rossman and Farmers to the extent that they hold that the territory clause of a foreign insurer’s policy and the situs of the accident provides sufficient contact with the forum state.

We find that minimum contacts has not been established on this record. Countrywide did not purposefully avail itself of conducting activities within North Carolina. It is undisputed that Countrywide has never been licensed or authorized to do business in any capacity in North Carolina. At all times relevant to this suit, Countrywide has only been licensed to issue insurance policies within New York State. Countrywide has never maintained an office or employees in North Carolina. It is a company incorporated under the laws of Delaware, with its principal place of business in New York. Countrywide has never conducted or solicited business in or from North Carolina. There is a qualitative distinction between contracting to cover an insured under a territory of coverage clause and the insurer of the policy being amenable to being haled into court anywhere in the United States in a dispute with another insurer. Countrywide cannot reasonably foresee being haled into court in a state where it did not purposefully direct its activities (see D & R Global Selections, S.L., 29 NY3d at 300).

Moreover, conferring jurisdiction also violates fair play and substantial justice. Since Countrywide has no connection with North Carolina, it would be a burden for the insurer to litigate the subrogation claim with Repwest in that state. Repwest, while authorized to do business in North Carolina, is an Arizona corporation with its principal place of business in Phoenix.

3216

Butler v Knights Collision Experts, Inc., 2018 NY Slip Op 06474 [1st Dept. 2018]

Plaintiffs failed to establish that defendants’ conduct during discovery was willful, contumacious or in bad faith (see Lee v 13th St. Entertainment LLC, 161 AD3d 631 [1st Dept 2018]; Palmenta v Columbia Univ., 266 AD2d 90 [1st Dept 1999). At the time the motion was made, defendants were in violation of a single court order. Moreover, the court improvidently exercised its discretion in imposing the sanction nine months after plaintiffs brought their motion, when discovery had been completed and the note of issue filed.

CPLR 5003-a

Howell v City of New York, 2018 NY Slip Op 07178 [1st Dept. 2018]

Once defendants failed to timely pay all sums due to plaintiff within ninety days of his tender of the requisite settlement documents (see CPLR 5003-a[b]), plaintiff was entitled to a judgment “for the amount set forth in the release, together with costs and lawful disbursements, and interest on the amount set forth in the release from the date that the release and stipulation discontinuing action were tendered” (CPLR 5003-a[e]). The parties no longer dispute that defendants did not timely pay plaintiff, they have stipulated to the amount of costs, disbursements, and interest plaintiff is due, and defendants have paid plaintiff that sum. Plaintiff is therefore not entitled to any further relief or monetary award.

Further, CPLR 5003-a(e) is specific about what may be contained in a judgment against a settling defendant who has not timely paid a plaintiff his settlement proceeds. Given the absence in that provision of any reference to prejudgment interest, there is no basis for departing from the “irrefutable inference … that what is omitted or not included was intended to be omitted or excluded” (McKinney’s Cons Laws of NY, Book 1, Statutes § 240).

We reject plaintiff’s argument that the term “interest,” as used in the stipulation of settlement, is unclear. Given that plaintiff was not entitled to postjudgment interest – or, for that matter, a judgment – at the time that he executed the stipulation of settlement, “interest” could [*2]not have referred to anything other than prejudgment interest. Coupled with his allocution to the settlement and the subsequent stipulation that no further costs or sanctions would be sought, we find that plaintiff unambiguously waived any right he may have had to pre-judgment interest.

Finally, since the parties have already stipulated that any judgment plaintiff was authorized by CPLR 5003-a(e) to enter has already been satisfied, and the record and briefs confirm that plaintiff has been paid all monies due to him, there is no need to grant plaintiff leave to enter a new judgment in place of the 2014 judgment.

Appeal from Judgment: 5501

Anderson & Anderson LLP-Guangzhou v North Am. Foreign Trading Corp., 2018 NY Slip Op 06971 [1st Dept. 2018]

The February 2017 order, which denied plaintiffs’ motion to vacate an October 2014 order that disqualified counsel for plaintiffs, and the September 2017 order, which denied plaintiffs’ motion for leave for West to appear as counsel, are not brought up for review by the instant appeal from the judgment, because they do not “necessarily affect[] the final judgment” (see CPLR 5501[a][1]; Paul v Cooper, 100 AD3d 1550, 1552 [4th Dept 2012], lv denied 21 NY3d 855 [2013]). However, the November 2016 order, which granted defendant’s motion to vacate the note of issue and denied plaintiffs’ motion for summary judgment, is reviewable, because, if reversed, it could be dispositive (see CPLR 5501[a][1]; Siegmund Strauss, Inc. v East 149th Realty Corp., 20 NY3d 37, 41-43 [2012]).

CPLR 3213

JFURTI, LLC v First Capital Real Estate Advisors, L.P., 2018 NY Slip Op 06493 [1st Dept. 2018]

On the issue of the applicability of CPLR 3213, the documents herein are not “instruments for the payment of money only,” as contemplated by the statute, because they contain obligations beyond just the payment of money and require that payment be made in the future for an unidentified amount (see Weissman v Sinorm Deli, 88 NY2d 437, 444 [1996]). Moreover, the guaranty does not qualify because it is a guaranty for both payments and performance (Dresdner Bank AG. [N.Y. Branch] v Morse/Diesel, Inc., 115 AD2d 64, 68 [1st Dept 1986]). However, when a “plaintiff has mistaken his remedy and CPLR 3213 is in fact not available, the action typically should not be dismissed but simply converted to ordinary form as the statute provides,” unless the court orders otherwise (Weissman, 88 NY2d at 445; CPLR 3213). If the claims can be decided on the merits, the court can grant summary judgment accordingly (id. at 445).

Frye

Newton v State of New York, 2018 NY Slip Op 06494 [1st Dept. 2018]

Claimant contends that the testimony of the State’s economist is inadmissible because the methodology he used to arrive at the “theory” that the prior conviction reduced claimant’s employability and earnings capacity has not been shown to be generally accepted in the relevant community under Frye v United States (293 F 1013 [1926]). This argument is unpreserved (see Matter of State of New York v David S., 136 AD3d 445, 446 [1st Dept 2016]). In any event, a Frye analysis is inapplicable because the theory is not “scientific” (see People v Brooks, 31 NY3d 939, 941 [2018]; Wahl v American Honda Motor Co., 181 Misc 2d 396, 398-399 [Sup Ct, Suffolk County 1999]). Further, even if it is scientific, the challenge against it does not implicate a Frye analysis, but rather, “the admissibility question applied to all evidence — whether there is a proper foundation — to determine whether the accepted methods were appropriately employed in a particular case” (Parker v Mobil Oil Corp., 7 NY3d 434, 447 [2006]).

CPLR 3404 and a pure question of law

Thompkins v Ortiz, 2018 NY Slip Op 06503 [1st Dept. 2018]

Plaintiff challenges the applicability of CPLR 3404, on which the motion court apparently relied in denying her motion to restore the case to the calendar, for the first time on appeal. Since it is a legal argument that appears on the face of the record and could not have been avoided if brought to defendant’s attention at the proper juncture, we will review it (see Chateau d’If Corp. v City of New York, 219 AD2d 205, 209 [1st Dept 1996], lv denied 88 NY2d 811 [1996]).

The order that marked the case off the calendar directed plaintiff to provide additional discovery. It thus effectively vacated the note of issue and returned the case to pre-note of issue status (see Matos v City of New York, 154 AD3d 532[1st Dept 2017]). As CPLR 3404 does not apply to cases in which either no note of issue has been filed or the note of issue has been vacated (Turner v City of New York, 147 AD3d 597 [1st Dept 2017]), it does not apply to this case.

1625 Mkt. Corp. v 49 Farm Mkt., Inc., 2018 NY Slip Op 06498 [1st Dept. 2018]

Defendant’s argument, raised for the first time on appeal, that plaintiff’s counsel violated Rules of Professional Conduct (22 NYCRR 1200.0) rule 4.2(a) (“Communication with person represented by counsel”) does not pose a pure question of law, and will not be considered (see Gonzalez v New York City Health & Hosps. Corp., 29 AD3d 369, 370 [1st Dept 2006]).