Category: [App Div 2d Dept]

CPLR 3126

Crupi v Rashid, 2018 NY Slip Op 00406 [2d 2018]

The nature and degree of a penalty to be imposed under CPLR 3126 for discovery violations is addressed to the court's discretion (see Dimoulas v Roca, 120 AD3d 1293, 1295; Zakhidov v Boulevard Tenants Corp., 96 AD3d 737, 739). The general rule is that the court will impose a sanction commensurate with the particular disobedience it is designed to punish and go no further than that (see Zakhidov v Boulevard Tenants Corp., 96 AD3d at 739; Patrick M. Connors, Practice Commentaries, McKinney's Cons Laws of NY, Book 7B, C3126:8). Before a court invokes the drastic remedy of striking a pleading, or even of precluding all evidence, there must be a clear showing that the failure to comply with court-ordered discovery was willful and contumacious (see Zakhidov v Boulevard Tenants Corp., 96 AD3d at 739; Cianciolo v Trism Specialized Carriers, 274 AD2d 369, 370).

Here, on this record, there is no evidence demonstrating either that the incarcerated defendant, Syed Rashid, willfully and contumaciously failed to be deposed, or that his attorney failed to secure his deposition (see Brodsky v Amber Ct. Assisted Living, LLC, 147 AD3d 810; Zakhidov v Boulevard Tenants Corp., 96 AD3d at 738; Patel v DeLeon, 43 AD3d 432, 432-433; Cianciolo v Trism Specialized Carriers, 274 AD2d at 370).

Common-interest privilege

Saint Annes Dev. Co. v Russ, 2018 NY Slip Op 00451 [2d 2018]

 

The common-interest privilege is an exception to the traditional rule that the presence of a third party waives the attorney-client privilege (see Hyatt v State of Cal. Franchise Tax Bd., 105 AD3d 186, 205; Aetna Cas. & Sur. Co. v Certain Underwriters at Lloyd's, London, 176 Misc 2d 605, 611 [Sup Ct, NY County], affd 263 AD2d 367; In re Quigley Co., 2009 WL 9034027, *2-3, 2009 Bankr LEXIS 1352, *7-8 [Bankr SD NY]). To fall within that exception, the privileged communication must be for the purpose of furthering a legal, as opposed to a commercial, interest common to the client and the third party (see Hyatt v State of Cal. Franchise Tax Bd., 105 AD3d at 205; Delta Fin. Corp. v Morrison, 69 AD3d 669; U.S. Bank N.A. v APP Intl. Fin. Co., 33 AD3d 430, 431). "The legal interest that those parties have in common must be identical (or nearly identical), as opposed to merely similar" (Hyatt v State of Cal. Franchise Tax Bd., 105 AD3d at 205; see United States v Doe, 429 F3d 450, 453 [3d Cir]; F.D.I.C. v Ogden Corp., 202 F3d 454, 461 [1st Cir]). Moreover, the communication must "relate to litigation, either pending or anticipated, in order for the exception to apply" (Ambac Assur. Corp. v Countrywide Home Loans, Inc., 27 NY3d 616, 620; see Hyatt v State of Cal. Franchise Tax Bd., 105 AD3d at 205).

CPLR 2104

CPLR 2104

Tavolacci v Tavolacci, 2014 NY Slip Op 00986 [2nd Dept. 2014]

Contrary to the plaintiff's contentions, the record demonstrates that the parties validly entered into a comprehensive open-court stipulation (see CPLR 2104; Pretterhofer v Pretterhofer, 37 AD3d at 446; Borghoff v Borghoff, 8 AD3d 519) by which the plaintiff unequivocally, knowingly, and voluntarily agreed to be bound (see Pretterhofer v Pretterhofer, 37 AD3d at 446). Accordingly, the Supreme Court properly denied the plaintiff's motion, in effect, to vacate the stipulation of settlement and properly granted that branch of the defendant's motion which was to incorporate the stipulation of settlement into the judgment of divorce.

Emphasis mine.

a 90 day notice that wasnt

CPLR 3216

Kapnisakis v Woo, 2014 NY Slip Op 00967 [2nd Dept. 2014]

However, the defendants did not move to hold the plaintiff in default of those provisions. Moreover, the order dated August 6, 2010, was not a valid 90-day notice, since it directed the filing of a note of issue in less than 90 days (see Gladman v Messuri, 71 AD3d 827, 828). Therefore, the plaintiff's failure to file a note of issue was of no consequence.

On November 12, 2010, the action was marked "Disposed" by the clerk. Within one year, on November 10, 2011, the plaintiff moved, in effect, to restore the action to active status, and annexed to that motion his opposition papers to the defendants' motion for summary judgment. In the order appealed from, the Supreme Court denied the motion.

Since no note of issue was filed in this case, this action was not on the trial calendar, and CPLR 3404 did not apply (see Khaolaead v Leisure Video, 18 AD3d 820; Lopez v Imperial Delivery Serv., 282 AD2d 190). Accordingly, there was no basis for denying the motion to restore (see Hemberger v Jamaica Hosp., 306 AD2d 244).

The plaintiff was never adjudicated in default of the order dated August 6, 2010, and he has now complied with all binding provisions of that order, including filing papers in opposition to the defendants' motion for summary judgment. Under the particular circumstances of this case, including the current procedural posture of the action, a determination of the issues on the merits, in keeping with the strong public policy in favor of resolving cases on the merits, is warranted (see Bunch v Dollar Budget, Inc., 12 AD3d 391).

Emphasis mine.

CPLR 308

CPLR 3080

Deutsche Bank Natl. Trust Co. v Quinones, 2014 NY Slip Op 00959 [2nd Dept. 2014]

Here, the affidavit of service indicating that the respondent was served pursuant to CPLR 308(2) by delivery of the papers to a person of suitable age and discretion was insufficient on its face to establish, prima facie, that the respondent was validly served pursuant to that section. However, a second affidavit of service constituted prima facie evidence of proper service of the summons and complaint pursuant to CPLR 308(1) (see Reich v Redley, 96 AD3d 1038), and of proper service of the notice required by Real Property Actions and Proceedings Law § 1303 (see US Bank N.A. v Tate, 102 AD3d 859). The respondent's bare and unsubstantiated denial of service lacked the factual specificity and detail required to rebut the prima facie proof of proper service set forth in that affidavit of service (see ACT Props., LLC v Garcia, 102 AD3d 712, 713; Scarano v Scarano, 63 AD3d 716, 716-717).

Empahsis mine.

unqualified expert and not disqualified expert

Von Ohlen v East Meadow Union Free Sch. Dist., 2014 NY Slip Op 00652 [2nd Dept. 2014]

While the plaintiffs submitted the affidavit and report of their purported expert, there was no showing that the purported expert had any specialized knowledge, experience, training, or education regarding playground equipment so as to qualify him to render an opinion in this area (see Y.H. v Town of Ossining, 99 AD3d 760, 762). Furthermore, the expert's opinions were speculative and conclusory (see Rivas-Chirino v Wildlife Conservation Socy., 64 AD3d 556, 558). Additionally, the plaintiffs' reliance on the handbook of the United States Consumer Product Safety Commission was inadequate to raise a triable issue of fact as to the School District's negligence, since the standards promulgated by that agency are not mandatory but, rather, are merely suggested guidelines (see Miller v Kings Park Cent. School Dist., 54 AD3d 314, 315; Soldano v Bayport-Blue Point Union Free School Dist., 29 AD3d 891; Pinzon v City of New York, 197 AD2d 680, 681).

Winzelberg v 1319 50th St. Realty Corp., 2014 NY Slip Op 00656 [2nd Dept. 2014]

The appellants failed to establish a sufficient basis for disqualifying the plaintiff's expert witness. The record demonstrated that the expert was originally and continuously retained on the plaintiff's behalf, such that no confidential relationship existed between the plaintiff's expert and any defendants in this action (see Roundpoint v V.N.A., Inc., 207 AD2d 123; see generally Berkowitz v Berkowitz, 176 AD2d 775; cf. Mancheski v Gabelli Group Capital Partners, Inc., 22 AD3d 532, 534; Matter of Walden Fed. Sav. & Loan Assn. v Village of Walden, 212 AD2d 718, 719). No other basis for finding a conflict of interest was presented. Accordingly, the appellants' motion to disqualify the plaintiff's expert witness was properly denied.

CPLR 3126 motion made at court appearance

CPLR 3126

Tung Wa Ma v New York City Tr. Auth., 2014 NY Slip Op 00497 [2nd Dept. 2014]

At a court appearance on October 10, 2012, the plaintiffs made an oral application pursuant to CPLR 3126 to preclude Lamboy from testifying at trial. The plaintiffs argued that, despite prior requests and orders, the MTA defendants had failed to provide the requested documents. The MTA defendants opposed the application, arguing, inter alia, that they had been unsuccessfully searching for the documents and that, if given the opportunity, they would provide affidavits attesting to the efforts they had made to find them. The Supreme Court granted the plaintiffs' application without giving the MTA defendants an opportunity to show the efforts they had made to find the requested documents.

Before a court may impose the drastic remedy of preclusion for disclosure violations, it must determine that the offending party's lack of cooperation with disclosure was willful, deliberate, and contumacious (see Aha Sales, Inc. v Creative Bath Prods., Inc., 110 AD3d 1020). Here, the court erred in granting the plaintiffs' application pursuant to CPLR 3126 to preclude Lamboy from testifying at trial without first affording the MTA defendants an opportunity to demonstrate their attempts to comply with the prior order (see Xand Corp. v Reliable Sys. Alternatives Corp., 35 AD3d 849, 850; cf. Mitskevitch v City of New York, 78 AD3d 1137, 1138; Kelleher v Mt. Kisco Med. Group, 264 AD2d 760, 761; Postel v New York Univ. Hosp., 262 AD2d 40, 42).

Bold is mine.

CPLR 3211(e) + alleged lack of standing is not a jurisdictional defect

CPLR 3211(e)
CPLR 5015

JP Morgan Mtge. Acquisition Corp. v Hayles, 2014 NY Slip Op 00485 [2nd Dept. 2015]

Hayles contends that the action should be dismissed insofar as asserted against her for lack of standing because the plaintiff was not the holder of the underlying note and mortgage when it commenced the action (see Homecomings Fin., LLC v Guldi, 108 AD3d 506, 507; Bank of N.Y. v Silverberg, 86 AD3d 274, 279). The Supreme Court properly rejected this claim because Hayles waived it by failing to challenge the plaintiff's standing in her answer or in a pre-answer motion to dismiss (see Deutsche Bank Natl. Trust Co. v Hussain, 78 AD3d 989, 990; see also CPLR 3211[e]; CitiMortgage, Inc. v Rosenthal, 88 AD3d 759, 761).

A defendant seeking to vacate a default pursuant to CPLR 5015(a)(1) must demonstrate a reasonable excuse for the default and a potentially meritorious defense to the action [*2](see Wells Fargo Bank v Malave, 107 AD3d 880). As Hayles failed to demonstrate any potentially meritorious defense to the foreclosure action or a reasonable excuse for her default in opposing the plaintiff's motion for summary judgment, the Supreme Court properly denied that branch of her motion which was to vacate the judgment of foreclosure and sale pursuant to CPLR 5015(a)(1) (see Deutsche Bank Natl. Trust Co. v Hussain, 78 AD3d at 990).

Furthermore, the Supreme Court properly denied those branches of Hayles' motion which were, in effect, pursuant to CPLR 5015(a)(3) and (4) to vacate the judgment of foreclosure and sale. In this regard, the record contains no evidence of fraud or misrepresentation, and an alleged lack of standing is not a jurisdictional defect (see U.S. Bank N.A. v Tate, 102 AD3d 859, 860; Deutsche Bank Natl. Trust Co. v Hunter, 100 AD3d 810, 811).

Bold is mine.

CPLR 3211(a)(1): Deposition not documentary evidence

CPLR 3211(a)(1)

JP Morgan Chase Bank, N.A. v Balliraj, 2014 NY Slip Op 00484 [2nd Dept. 2014]

A motion to dismiss pursuant to CPLR 3211(a)(1) "may be appropriately granted only where the documentary evidence utterly refutes plaintiff's factual allegations, conclusively establishing a defense as a matter of law" (Goshen v Mutual Life Ins. Co. of N.Y., 98 NY2d 314, 326; see Leon v Martinez, 84 NY2d 83, 88; Paramount Transp. Sys., Inc. v Lasertone Corp., 76 AD3d 519, 520; Shaya B. Pac., LLC v Wilson, Elser, Moskowitz, Edelman & Dicker, LLP, 38 AD3d 34, 37-38). The deposition testimony relied upon by the defendants in support of this branch of their cross motion does not constitute "documentary evidence" within the meaning of CPLR 3211(a)(1) (see Fontanetta v John Doe 1, 73 AD3d 78, 86). Further, contrary to the defendants' contention, the other documentary evidence upon which they rely does not conclusively establish that the plaintiff in Action No. 2, Residential Funding Company, LLC, lacks standing.

Bold is mine.

CPLR 2309(c)

CPLR 2309

Freedom Mtge. Corp. v Toro, 2014 NY Slip Op 00479 [2nd Dept. 2014]

It appears from this record that the plaintiff was the holder of the mortgage and note. In any event, by failing to appear in the action, the debtor waived the defense of lack of standing (see HSBC Bank USA, N.A. v Taher, 104 AD3d 815, 817). However, the affidavit attesting to the debtor's default in repaying the mortgage loan did not comply with CPLR 2309(c). Under the circumstances of this case, the Supreme Court did not improvidently exercise its discretion in denying relief to the movant without prejudice.

Bold is mine.