[App Div 2d Dept]

CPLR § 6201

Crescentini v Slate Hill Biomass Energy, LLC, 2014 NY Slip Op 00475 [2nd Dept. 2014]

In determining the motion for a preliminary injunction, the Supreme Court concluded that the plaintiff had not shown that she would suffer irreparable injury absent the granting of a preliminary injunction. Upon making this determination, it was error to deny the preliminary injunction motion on the condition that additional security be provided, and to continue the temporary restraining order pending approval of the additional security. Pursuant to CPLR 6301, a temporary restraining order may be granted pending a hearing for a preliminary injunction where it appears that immediate and irreparable injury, loss, or damage will result unless the defendant is restrained before the hearing can be held. Once the court determined that the plaintiff had not shown that she would suffer irreparable injury, there was no basis to continue the temporary restraining order.

We reject the Supreme Court's reasoning that, since the plaintiff might have been entitled to an order of attachment pursuant to CPLR 6201(3), it was therefore proper to direct Oliva to offer the plaintiff additional security. The plaintiff did not move for an order of attachment and, even had she done so, she would not have been entitled to one, as she did not establish that the Slate Hill defendants, with intent to defraud her or frustrate the enforcement of a judgment that might be rendered in her favor, had assigned, disposed of, encumbered, or secreted property, or removed it from the state, or were about to do any of those acts (see CPLR 6201[3]; Benedict v Browne, 289 AD2d 433). Accordingly, the possibility that the plaintiff might have sought the provisional remedy of attachment did not provide a basis for the court to direct Oliva to pay additional security to the plaintiff.

We note that the temporary restraining order was set forth in an order to show cause that provided that the temporary restraining order would only remain in effect pending the hearing and determination of the plaintiff's motion for a preliminary injunction. Since the preliminary injunction motion has been decided, and we have deleted the provision of the order appealed from extending the effective dates of the temporary restraining order, the temporary restraining order is no longer in effect. In light of our determination, we discern no basis on which to disturb the Supreme Court's determination to deny, as academic, the Slate Hill defendants' separate motion to vacate the temporary restraining order, since our determination has caused the temporary restraining order to expire.

Emphasis mine

CPLR 3212(f)

Castagna v Almaghrabi, 2014 NY Slip Op 00474 [2nd Dept. 2014]

"CPLR 3212(f) permits a court to deny a motion for summary judgment where it appears that the facts essential to oppose the motion exist but cannot then be stated'" (Wesolowski v St. Francis Hosp., 108 AD3d 525, 526, quoting CPLR 3212[f]), especially where, as here, the plaintiff has not had a reasonable opportunity to conduct discovery, and has no personal knowledge of the relevant facts (see Wesolowski v St. Francis Hosp., 108 AD3d at 526; Jones v American Commerce Ins. Co., 92 AD3d 844, 845). Under the circumstances of this case, the motion for summary judgment should have been denied, with leave to renew after the completion of discovery.

Bold is mine.

CPLR 321

CPLR 321(a)

Boente v Peter C. Kurth Off. of Architecture & Planning, P.C., 2014 NY Slip Op 00473 [2nd Dept. 2014]

As the plaintiff correctly contends, the Supreme Court erred in accepting an untimely, pro se answer from the defendant corporation, and in thereby denying that branch of the plaintiff's motion which was for leave to enter a default judgment on the complaint. The proffered answer was a nullity, since a corporation must be represented by an attorney and cannot proceed pro se (see CPLR 321[a]; Pisciotta v Lifestyle Designs, Inc., 62 AD3d 850, 853; Bilello v Genesis Seafood, Inc., 12 AD3d 474; World On Columbus v L.C.K. Rest. Group, 260 AD2d 323, 324).

Emphasis mine

No new arguments on appeal

Westchester Med. Ctr. v Government Empls. Ins. Co., 2014 NY Slip Op 00500 [2nd Dept. 2014]

The respondent's contention that there was a complete absence of coverage that could be asserted as a basis for disclaimer notwithstanding its failure to comply with the 30-day rule set forth in Insurance Law § 5106(a) and 11 NYCRR 65-3.8(c) (see generally Fair Price Med. Supply Corp. v Travelers Indem. Co., 10 NY3d 556; Presbyterian Hosp. in City of N.Y. v Maryland Cas. Co., 90 NY2d 274; Central Gen. Hosp. v Chubb Group of Ins. Cos., 90 NY2d 195; Zappone v Home Ins. Co., 55 NY2d 131), is improperly raised for the first time on appeal, and, therefore, is not properly before this Court.

falsus in uno falsus in omnibus

Bank v Holt, 2014 NY Slip Op 00344 [2nd Dept. 2014]

Although, as a general matter, we do not lightly disturb findings that are based upon conflicting evidence and implicate the credibility of witnesses, the evidence adduced at the hearing warrants a reversal of the Supreme Court's determination that process was properly effected upon Holt (see Matter of Chemical Bank v Davis, 133 AD2d 756; Aronauer v Ohl, 80 AD2d 592). Here, there was evidence that, of the five people whom the process server had allegedly contacted on various dates at the premises owned by Holt, one had moved out of the premises prior to the time in question, three had been earlier evicted, and one established through documentary evidence that he was physically in Atlanta, Georgia, on business when the process server claimed the witness was in Queens. Where a witness has given testimony that is demonstrably false, we may, in accordance with the maxim falsus in uno falsus in omnibus, choose to discredit or disbelieve other testimony given by that witness (see DiPalma v State of New York, 90 AD3d 1659, 1660; Accardi v City of New York, 121 AD2d 489, 490-491; see generally People v Becker, 215 NY 126, 144). Under the circumstances presented here, we conclude that the process server's testimony with respect to the affix-and-mail service allegedly effected upon Holt in Westbury should not be credited or believed.

Emphasis mine.

3025

CPLR 3025

United Fairness, Inc. v Town of Woodbury, 2014 NY Slip Op 00343 [2nd Dept. 2014]

Under the circumstances presented herein, the Supreme Court should have decided, on the merits, that branch of the plaintiff's motion which was for leave to amend the complaint before the court decided the motions of the Town and the Village to dismiss the complaint (see generally Cooke-Garrett v Hoque, 109 AD3d 457). Leave to amend a pleading should be freely given absent prejudice or surprise to the opposing party, unless the proposed amendment is palpably insufficient or patently devoid of merit (see CPLR 3025[b]; Carroll v Motola, 109 AD3d 629; Finkelstein v Lincoln Natl. Corp., 107 AD3d 759, 761; Lucido v Mancuso, 49 AD3d 220, 227). Moreover, a court shall not examine the legal sufficiency or merits of a pleading unless such insufficiency or lack of merit is clear and free from doubt (see Lucido v Mancuso, 49 AD3d at 227). Here, the proposed amended complaint, which principally sought to shift the claims from the plaintiff to a party who could have asserted those claims in the first instance, is proper, since "such an amendment, by its nature, did not result in surprise or prejudice to the [defendants], who had prior knowledge of the claim[s] and an opportunity to prepare a proper defense" (Fulgum v Town of Cortlandt Manor, 19 AD3d 444, 446; see JCD Farms v Juul—Nielsen, 300 AD2d 446; New York State Thruway Auth. v CBE Contr. Corp., 280 AD2d 390). In addition, the proposed amended complaint was not palpably insufficient or patently devoid of merit.

Accordingly, that branch of the plaintiff's motion which was for leave to serve an amended complaint should have been granted. Additionally, since the proposed amended complaint rectified the plaintiff's lack of standing, the Supreme Court should not have granted the motions to dismiss the complaint on the basis of lack of standing.

Emphasis mine.

Reopening the record

Sweet v Rios, 2014 NY Slip Op 00341 [2nd Dept. 2014]

Although the trial court suggested it would declare a mistrial and grant a new trial if either party moved for one so that certain matters could be "cleaned up," the defendants declined to seek a mistrial prior to the verdict. Accordingly, the defendants waived the potential remedy of a mistrial, and cannot argue on appeal that a mistrial should have been declared (see Rodriguez v Valentine, 20 AD3d 558, 559; Bonilla v New York City Health & Hosps. Corp., 229 AD2d 371; see also CPLR 4402; Tirado v Miller, 75 AD3d 153, 159).

Contrary to the defendants' contention, the trial court providently exercised its discretion in permitting the plaintiff to reopen her case to call her previously unavailable treating chiropractor as a witness and to introduce his complete office records into evidence. A trial court, in the exercise of discretion and for sufficient reasons, may allow a party to reopen and correct defects in evidence that have inadvertently occurred (see Kay Found. v S & F Towing Serv. of Staten Is., Inc., 31 AD3d 499, 501; Kennedy v Peninsula Hosp. Ctr., 135 AD2d 788, 790-791; see also Feldsberg v Nitschke, 49 NY2d 636, 643-644). When a motion to reopen is made, the trial court should consider whether the movant has provided a sufficient offer of proof, whether the opposing party is prejudiced, and whether significant delay in the trial will result if the motion is granted. Here, the plaintiff proffered a sufficient reason for the request and specified the evidence she would present if permitted to reopen, the defendants were not prejudiced by the presentation of such proof, and there was no undue delay (see Kay Found. v S & F Towing Serv. of Staten Is., Inc., 31 AD3d at 501; Frazier v Campbell, 246 AD2d 509, 510; Veal v New York City Tr. Auth., 148 AD2d 443, 444).

The emphasis is mine.

CPLR 2001 procedural irregularities and CPLR 3101 overbroad discovery

CPLR 2001

CPLR 3101

Lawrence v Kennedy, 2014 NY Slip Op 00329 [2nd Dept. 2014]

Contrary to the plaintiff's contentions, the Supreme Court properly considered the firm's motion for leave to reargue that branch of its prior motion which was to compel the production of certain documents despite certain procedural irregularities, as those irregularities did not prejudice the decedent (see CPLR 2001; Jones v LeFrance Leasing L.P., 81 AD3d 900, 903; Piquette v City of New York, 4 AD3d 402, 403). Further, the Supreme Court providently exercised its discretion in granting leave to reargue (see CPLR 2221[d][2]; Singleton v Lenox Hill Hosp., 61 AD3d 956, 957; Marini v Lombardo, 17 AD3d 545, 546; Carrillo v PM Realty Group, 16 AD3d 611, 611).

Upon reargument, however, the Supreme Court should have denied that branch of the firm's motion which was to compel the production of the documents, including certain documents removed from the firm's offices by the plaintiff. In this regard, the firm's document requests, many of which sought the decedent's personal financial information, were overly broad, and sought irrelevant or confidential information (see Conte v County of Nassau, 87 AD3d 559, 560; Board of Mgrs. of the Park Regent Condominium v Park Regent Assoc., 78 AD3d 752, 753; Pugliese v Mondello, 57 AD3d 637, 640; Benfeld v Fleming Props., LLC, 44 AD3d 599, 600; Bell v Cobble Hill Health Ctr., Inc., 22 AD3d 620, 621; Latture v Smith, 304 AD2d 534, 536).

Emphasis is mine.

CPLR 602 You cant’ consolidate a dismissed action into another action

CPLR 602

Jacobs v Mostow, 2014 NY Slip Op 00328 [2nd Dept. 2014]

The Supreme Court properly denied that branch of the plaintiff's motion which was to consolidate this action with an action entitled Jacobs v Mostow, filed in the Supreme Court, Nassau County, under Index No. 7715/07 (hereinafter the 2007 action). Consolidation requires two pending actions (see CPLR 602). Since the 2007 action was dismissed, and that dismissal was affirmed on appeal, there is no pending 2007 action to consolidate with this action.

CPLR 3101 Additional discovery of financial documents was neither material nor necessary

CPLR 3101(a)

Hatter v Myerson, 2014 NY Slip Op 00326 [2nd Dept. 2014]

Contrary to the appellant's contention, the Supreme Court providently exercised its discretion in concluding that the additional discovery of financial documents sought by the appellant was neither material nor necessary in the defense of the action (see CPLR 3101[a]; Constantino v Dock's Clam Bar & Pasta House, 60 AD3d 612).

Decision doesnt give anything in the way of facts, but it might prove useful as a cite.

Pecile v Titan Capital Group, LLC, 2014 NY Slip Op 00425 [1st Dept. 2014]

Regarding defendants' demand for access to plaintiffs' social media sites, they have failed to offer any proper basis for the disclosure, relying only on vague and generalized assertions that the information might contradict or conflict with plaintiffs' claims of emotional distress. Thus, the postings are not discoverable (see Tapp v New York State Urban Dev. Corp., 102 AD3d 620 [1st Dept 2013]).

Lastly, defendants correctly assert that prior criminal convictions and pleas of guilty are relevant and discoverable (CPLR 4513; see also Sansevere v United Parcel Serv., 181 AD2d 521 [*2][1st Dept 1992]). However, "[a] youthful offender adjudication is not a judgment of conviction for a crime or any other offense" (Criminal Procedure Law § 720.35[1]). Thus, defendants cannot compel disclosure of the details of a youthful offense, since that would "contravene[] the goals envisioned by the youthful offender policy" (State Farm Fire & Cas. Co. v Bongiorno, 237 AD2d 31, 36, [2d Dept 1997]; see also Auto Collection, Inc. v C.P., 93 AD3d 621, 622 [2d Dept 2012]). Nothing in the record suggests that the evidence sought would serve as collateral estoppel to the claim, or is relevant in some other manner that would serve as an exception to that general rule (see Green v Montgomery, 95 NY2d 693 [2001]).