Substitute Expert 3101(d)

Geffner v Mercy Med. Ctr., 2018 NY Slip Op 08280 [2d Dept. 2018]

Furthermore, contrary to the plaintiff’s contention, the Supreme Court did not improvidently exercise its discretion in precluding her from proffering the testimony of a “substitute expert” at trial. Pursuant to CPLR 3101(d)(1)(i), “where a party for good cause shown retains an expert an insufficient period of time before the commencement of trial to give appropriate notice thereof, the party shall not thereupon be precluded from introducing the expert’s testimony at the trial solely on grounds of noncompliance with this paragraph” (emphasis added). “A determination regarding whether to preclude a party from introducing the testimony of an expert witness at trial based on the party’s failure to comply with CPLR 3101(d)(1)(i) is left to the sound discretion of the court” (McGlauflin v Wadhwa, 265 AD2d 534, 534). Here, since the plaintiff offered only a vague excuse for the unavailability of the intended expert, without offering any details as to when the plaintiff learned of that expert’s unavailability, she failed to establish good cause to offer the testimony of the “substitute expert” (see Banister v Marquis, 87 AD3d 1046Caccioppoli v City of New York, 50 AD3d 1079Klatsky v Lewis, 268 AD2d 410, 411). Moreover, the plaintiff had previously been unprepared to proceed with trial due to, inter alia, the unavailability of experts (see Fava v City of New York, 5 AD3d 724, 725).


JP Morgan Chase Bank v Faracco, 2018 NY Slip Op 08286 [2d Dept. 2018]

As the plaintiff correctly contends, the ministerial dismissal of the action was improper. Although the Supreme Court appears to have relied upon CPLR 3216 (b) as authority for its actions, the order dated April 11, 2013, failed to constitute a valid 90-day demand under that statute, since it did not recite that noncompliance with its terms “will serve as a basis for a motion . . . for dismissal . . . for unreasonably neglecting to proceed” (CPLR 3216[b][3]; see Deutsche Bank Natl. Trust Co. v Bastelli, 164 AD3d 748Deutsche Bank Natl. Trust Co. v Cotton, 147 AD3d 1020US Bank N.A. v Saraceno, 147 AD3d 1005). Moreover, the court never directed the parties to show cause as to why the action should not be dismissed, and did not enter a formal order of dismissal on notice to the parties as required by CPLR 3216(a) (see Cadichon v Facelle, 18 NY3d 230US Bank N.A. v Saraceno, 147 AD3d at 1006). Accordingly, the ministerial dismissal, made without notice and without benefit of further judicial review, was erroneous (see Cadichon v Facelle, 18 NY3d at 236). In any event, dismissal was improper because the letter sent by the plaintiff’s counsel to the court, which provided a good faith explanation for the delay in moving for a judgment of foreclosure and sale, adequately and timely complied with the terms of the order dated April 11, 2013, and the plaintiff’s conduct did not prejudice the defendant and did not support any inference of an intent to abandon the action (see US Bank N.A. v Saraceno, 147 AD3d at 1006).


Fling v Integrity Bus. Solutions, Inc.,  2018 NY Slip Op 07691 [1st Dept. 2018]

Order, Supreme Court, Bronx County (Mary Ann Brigantti, J.), entered April 21, 2017, which, to the extent appealed from as limited by the briefs, granted defendants’ motion pursuant to CPLR 3215(c) to dismiss the complaint for failing to move for a default judgment within the one-year deadline, unanimously reversed, on the law, without costs, and the motion denied.

Although plaintiff’s excuse for failing to move for a default judgment within one year of defendants’ default is not entirely compelling, it must, however, be weighed against the merits of plaintiff’s claim and the prejudice to defendants (see LaValle v Astoria Constr. & Paving Corp., 266 AD2d 28 [1st Dept 1999]). Here, plaintiff’s affidavit sets out a meritorious action, and defendant Hutchins’s denials, contained in his own affidavit, merely raise triable issues of fact. Furthermore, defendants have offered no evidence of any prejudice from the delay, and there is strong public policy in favor of deciding cases on the merits (see Nedeltcheva v MTE Transp. Corp., 157 AD3d 423 [1st Dept 2018]).

Compare with the Second Department: BAC Home Loans Servicing, LP v Broskie, 2018 NY Slip Op 08005 [2d Dept. 2018]

CPLR 7511

Matter of NRT N.Y. LLC v Spell, 2018 NY Slip Op 07664 [1st Dept. 2018]

CPLR 7511 provides just four grounds for vacating an arbitration award, including that the arbitrator “exceeded his power” (CPLR 7511[b][1][iii]), which “occurs only where the arbitrator’s award violates a strong public policy, is irrational or clearly exceeds a specifically enumerated limitation on the arbitrator’s power” (Matter of New York City Tr. Auth. v Transport Workers’ Union of Am., Local 100, AFL-CIO, 6 NY3d 332, 336 [2005]). Mere errors of fact or law are insufficient to vacate an arbitral award (Matter of Kowaleski, 16 NY3d 85, 90-91 [2010]). “[C]ourts are obligated to give deference to the decision of the arbitrator, … even if the arbitrator misapplied the substantive law in the area of the contract” (id.).

Here, the arbitrator’s conclusion that a sales commission was not due under the precise terms of the Agreement because the lease was not extended is neither wholly irrational nor contrary to any strong public policy. Accordingly, the motion to vacate should have been denied and the award confirmed (see Ingham v Thompson, 113 AD3d 534 [1st Dept 2014], lv denied 22 NY3d 866 [2014]; CPLR 7511[e]).

Matter of Miller Tabak & Co., LLC v Coppedge, 2018 NY Slip Op 07656 [1st Dept. 2018]

Petitioners waived any claim of arbitrator bias based on one arbitrator’s participation in a previous arbitration, which had been disclosed to the parties, by failing to raise any such claim or objection until the hearing was in progress (see Matter of Atlantic Purch., Inc. v Airport Props. II, LLC, 77 AD3d 824, 825 [2d Dept 2010]). In any event, there is no evidence to support any such claim (id.).

Matter of Progressive Advanced Ins. Co. v New York City Tr. Auth., 2018 NY Slip Op 07432 [2d Dept. 2018]

To be upheld, an award in a compulsory arbitration proceeding such as this one (see Insurance Law § 5105[b]) “must have evidentiary support and cannot be arbitrary and capricious” (Matter of Motor Veh. Acc. Indem. Corp. v Aetna Cas. & Sur. Co., 89 NY2d 214, 223; see Matter of Fiduciary Ins. Co. v American Bankers Ins. Co. of Florida, 132 AD3d 40, 45-46). “Moreover, with respect to determinations of law, the applicable standard in mandatory no-fault arbitrations is whetherany reasonable hypothesis can be found to support the questioned interpretation'” (Matter of Fiduciary Ins. Co. v American Bankers Ins. Co. of Florida, 132 AD3d at 46, quoting Matter of Shand [Aetna Ins. Co.], 74 AD2d 442, 454 [emphasis in original]; see Matter of Furstenberg [Aetna Cas. & Sur. Co.—Allstate Ins. Co.], 49 NY2d 757, 758).

Here, the arbitrator’s determination was supported by a “reasonable hypothesis” and cannot be said to be arbitrary or capricious (Matter of Fiduciary Ins. Co. v American Bankers Ins. Co. of Florida, 132 AD3d at 46; see Matter of Furstenberg [Aetna Cas. & Sur. Co.—Allstate Ins. Co.], 49 NY2d at 758-759).

Matter of Johnson v Riverhead Cent. Sch. Dist., 2018 NY Slip Op 08021 [2d Dept. 2018]

When reviewing compulsory arbitrations in education proceedings such as this, the court should accept the hearing officer’s credibility determinations, even where there is conflicting evidence and room for choice exists (see Matter of Berenhaus v Ward, 70 NY2d 436, 443-444; Matter of Powell v. Board of Educ. of Westbury Union Free School Dist., 91 AD3d 955, 955; Matter of Saunders v Rockland Board of Coop. Educ. Servs., 62 AD3d at 1013).

Prior restraint and contempt

Brummer v Wey, 2018 NY Slip Op 07843 [1st Dept. 2018]

Initially, we reiterate that, although it may ultimately be determined that defendants have libeled plaintiff, “[p]rior restraints are not permissible . . . merely to enjoin the publication of libel” (Rosenberg, 290 AD2d at 239; see also Giffuni v Feingold, 299 AD2d 265, 266 [1st Dept 2002]; cf. Dennis v Napoli, 148 AD3d 446 [1st Dept 2017] [affirming preliminary injunction against sending unsolicited defamatory communications about the plaintiff, who was not a public figure, directly to her colleagues, friends and family]). Accordingly, as plaintiff appears to recognize, the preliminary injunction can be affirmed only if it enjoins a “true threat” against plaintiff (Virginia v Black, 538 US at 359 [internal quotation marks omitted]). We find, however, that the speech at issue, as offensive as it is, cannot reasonably be construed as truly threatening or inciting violence against plaintiff. Rather, the lynching imagery at issue was plainly intended to draw a grotesque analogy between lynching and FINRA’s banning of Harris, ]who is an African American (and is identified as such in the posts)[FN2]. While this analogy is incendiary and highly inappropriate, plaintiff has not established that any reasonable viewer would have understood the posts as threatening or calling for violence against him. Moreover, even if the posts could reasonably be construed as advocating unlawful conduct, plaintiff has not established that any “such advocacy is directed to inciting or producing imminent lawless action and is likely to incite or produce such action” (Brandenburg v Ohio, 395 US 444, 447 [1969]).

Regardless of the subject injunction’s constitutionality, defendants were not free to disobey an order within the jurisdiction of the issuing court, and not void on its face, until they had obtained judicial relief from it [FN3]. Further, contrary to defendants’ contention, the injunction, at least as modified by this Court’s partial stay, was not impermissibly vague or ambiguous. Moreover, we are satisfied that, assuming that defendants controlled the website, a substantial part of the posted material forming the basis for the contempt finding violated the terms of the injunction as modified by the partial stay. However, it cannot be determined on the present record whether defendants exercised control and authority over the website, an issue that we find to have been sufficiently preserved by defendants. Accordingly, we vacate the contempt adjudication and direct that, on remand, an evidentiary hearing be held to determine whether defendants had control of the website at the times of the alleged contemptuous conduct.

Lueker v Lueker, 2018 NY Slip Op 07421 [2d Dept. 2018]

The order appealed from, holding the father in contempt for failing to comply with the July 2013 order by not posting a bond, is not subject to reversal based on this Court’s modification of the July 2013 order by deleting the requirement that the plaintiff post a bond, as “[o]bedience to a lawful order of the court is required even if the order is thereafter held erroneous or improvidently made or granted by the court under misapprehension or mistake” (Department of Hous. Preserv. & Dev. of City of New York v Mill Riv. Realty, 169 AD2d 665, 670, affd 82 NY2d 794 [internal quotation marks omitted]; see Matter of Saffra v Rockwood Park Jewish Ctr., 249 AD2d 480). Moreover, this Court’s modification of the July 2013 order “does not render the instant appeal academic, since a party may be adjudicated in contempt of a court mandate which is later overturned on appeal” (Matter of Village of Chestnut Ridge v Town of Ramapo, 99 AD3d 928, 930).

Nevertheless, we reverse the order appealed from, since, in response to the defendant’s showing that she was prejudiced by the plaintiff’s knowing disobedience of a lawful order of the court which expressed an unequivocal mandate, the plaintiff proffered credible evidence of his inability to obtain the required bond. Inability to comply with an order is a defense to both civil and criminal contempt (see El-Dehdan v El-Dehdan, 26 NY3d 19, 35; Matter of Powers v Powers, 86 NY2d 63, 70; Gomes v Gomes, 106 AD3d 868, 869; Yeager v Yaeger, 38 AD3d 534; Ferraro v Ferraro, 272 AD2d 510, 512).

Matter of Palmitesta v Palmitesta, 2018 NY Slip Op 07731 [2d Dept. 2018]

Here, at the time the father’s motion was decided, the mother was complying with the parties’ stipulation. Thus, although the mother may have failed to comply with the stipulation in the past, at the time the father’s motion was decided, a civil contempt finding no longer could have served its intended purpose of compelling obedience to the parties’ stipulation. The only purpose of a civil contempt sanction at that point would have been to punish the mother, but punishment is the purpose of criminal contempt, not civil contempt. Thus, we agree with the Family Court’s determination, in effect, denying the father’s motion (see id. at 239; Matter of Peer, 50 AD3d 1511, 1512; Carr v Decesare, 280 AD2d 852, 853).


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 956Malester 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 563Worley 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 678Amico v Melville Volunteer Fire Co., Inc., 39 AD3d 784, 785).

11 USC § 362[a]

Castaldini v Walsh, 2018 NY Slip Op 07407 [2d Dept. 2018]

The plaintiffs commenced this action to recover damages for personal injuries allegedly sustained by the plaintiff Richard Castaldini at the defendants’ home. The defendant Gia Walsh was served by personal delivery of the summons and complaint (see CPLR 308[1]). The defendant David Walsh was served by delivery of the summons and complaint to Gia Walsh, follow-up mailing, and filing of proof of service with the Suffolk County Clerk (see CPLR 308[2]). The defendants moved to dismiss the complaint pursuant to CPLR 3211(a) on the ground that because Gia Walsh had filed a petition for bankruptcy, the automatic bankruptcy stay (see 11 USC § 362[a]) was in effect when service was effectuated, and the stay extended to preclude service upon David Walsh by delivery of the summons and complaint to Gia Walsh. The Supreme Court granted that branch of the motion which was to dismiss the complaint insofar as asserted against Gia Walsh, but denied that branch of the motion which was to dismiss the complaint insofar as asserted against David Walsh. The defendants appeal.

We agree with the Supreme Court that the defendants’ contention that 11 USC § 1301(a) precluded service upon David Walsh by delivery of the summons and complaint to Gia Walsh under CPLR 308(2) is without merit (cf. 11 USC §§ 362[a], 1301[a]).

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]


Kondaur Capital Corp. v Stewart, 2018 NY Slip Op 07713 [2d Dept. 2018]

The defendant failed to demonstrate her entitlement to relief based upon newly discovered evidence (see CPLR 5015[a][2]; Deutsche Bank Natl. Trust Co. v Morris, 160 AD3d 613Wall St. Mtge. Bankers, Ltd. v Rodgers, 148 AD3d 1088, 1089). Notably, even if the evidence cited by the defendant could be considered newly discovered, she failed to establish that such evidence would probably have produced a different result (see Bank of N.Y. v Tobing, 155 AD3d 596, 596-597; U.S. Bank N.A. v Galloway, 150 AD3d 1174, 1175; IMC Mtge. Co. v Vetere, 142 AD3d 954, 955; Federated Conservationists of Westchester County v County of Westchester, 4 AD3d 326, 327).

Additionally, the defendant failed to demonstrate her entitlement to vacatur pursuant to CPLR 5015(a)(3). A party seeking to vacate a judgment pursuant to CPLR 5015(a)(3) must make the motion within a reasonable time. Here, the defendant’s delay in moving to vacate the judgment of foreclosure and sale was unreasonable (see Dimery v Ulster Sav. Bank, 82 AD3d 1034, 1034; Bank of N.Y. v Stradford, 55 AD3d 765, 765). In any event, the defendant failed to demonstrate any fraud, misrepresentation, or other misconduct warranting vacatur of the judgment (see Summitbridge Credit Invs., LLC v Wallace, 128 AD3d 676, 677-678).

The defendant contends that the Supreme Court lacked jurisdiction to issue the judgment of foreclosure and sale because Kondaur lacked standing. However, ” an alleged lack of standing is not a jurisdictional defect'” (HSBC Bank USA, N.A. v Dalessio, 137 AD3d 860, 863, quoting JP Morgan Mtge. Acquisition Corp. v Hayles, 113 AD3d 821, 823; see CPLR 5015[a][4]).

Interesting insufficient SJ

Alexander v Annarumma, 2018 NY Slip Op 07695 [2d Dept. 2018]

Since the defendant did not sustain her prima facie burden, it is unnecessary to determine whether the papers submitted by the plaintiff—either in opposition to the defendant’s original motion or in support of that branch of the plaintiff’s motion which was for leave to renew her opposition to that motion—were sufficient to raise a triable issue of fact (see Winegrad v New York Univ. Med. Ctr., 64 NY2d 851, 853). Therefore, the Supreme Court, upon renewal and reargument, should have vacated the order entered October 22, 2015, which granted the defendant’s motion for summary judgment dismissing the complaint, and thereupon, denied that motion.