Category: [App Div 2d Dept]

Res Judicata

Pondview Corp. v Blatt, 2012 NY Slip Op 03618 (2nd Dept., 2012)

Here, the claims asserted by the plaintiffs arose out of the same transaction or series of transactions as those raised in a prior action commenced by the plaintiffs in 2003 (hereinafter the 2003 action). Moreover, all of the claims asserted here either were raised or could have been raised in the 2003 action. Accordingly, notwithstanding the fact that some relief sought in this action is different from that sought in the 2003 action, the Supreme Court properly granted those branches of the defendants' separate motions which were to dismiss the complaint insofar as asserted against each of them pursuant to CPLR 3211(a)(5), based on the doctrine of res judicata.

agreement to agree is not to agree at all

Michael H. Spector, AIA, P.C. v Billy Smith's Sport Ctr., Inc., 2012 NY Slip Op 03610 (2nd Dept., 2012)

Contrary to the plaintiff's contention, there is no valid line of reasoning or permissible inferences that could lead a rational person to the conclusion reached by the jury with respect to the causes of action to recover damages for beach of contract or to recover on an account stated. With respect to the cause of action alleging breach of contract, the evidence adduced at trial demonstrated that the parties had a mere agreement to agree, which is insufficient to bind either party (see Joseph Martin, Jr., Delicatessen v Schumacher, 52 NY2d 105, 109-110; Maffea v Ippolito, 247 AD2d 366, 367). With respect to the cause of action to recover on an account stated, the parties did not agree on a price that the individual defendants would pay for the plaintiff's services, and the plaintiff thus failed to establish a requisite element for recovery on a theory of account stated (see Heelan Realty & Dev. Corp.v Ocskasy, 27 AD3d 620). Accordingly, the Supreme Court properly granted those branches of the individual defendants' motion which were pursuant to CPLR 4404(a) to set aside the verdict and for judgment as a matter of law dismissing the causes of action alleging breach of contract and to recover on an account stated insofar as asserted against them.

JMF Consulting Group II, Inc. v Beverage Mktg. USA, Inc., 2012 NY Slip Op 05392 (2nd Dept. 2012)

JMF and Ferolito established, prima facie, that the alleged oral agreement was too indefinite to be enforceable and was merely an agreement to agree (see Joseph Martin, Jr., Delicatessen v Schumacher, 52 NY2d 105; Mellen & Jayne, Inc. v AIM Promotions, Inc., 33 AD3d 676, 677-678; Flanel v Flanel, 152 AD2d 536, 536-537). Moreover, since the terms of each loan were set out in writing in each of the separate promissory notes executed by BMU, BMU was precluded from establishing the existence of an enforceable oral agreement by relying on parole evidence that contradicted the express terms of those notes (see Marine Midland Bank-S. v Thurlow, 53 NY2d 381, 387; Dong Won Kim v Frank H. Truck Corp., 81 AD3d 586, 587; Friends of Avalon Preparatory School v Ehrenfeld, 6 AD3d 658, 658-659). Since BMU failed to raise a triable issue of fact in response to the prima facie showing of JMF and Ferolito, those branches of the motion of JMF and Ferolito which were for summary judgment dismissing the first counterclaim and the first cause of action in the third-party complaint should have been granted.

rare appellate procedure

Thomas v Kiriluk, 2012 NY Slip Op 03631 (2nd Dept., 2012)

"As a general rule, this Court does not consider an issue on a subsequent appeal which was raised or could have been raised in an earlier appeal which was dismissed for lack of prosecution, although the Court has the inherent jurisdiction to do so" (Kitt v Podlofsky, 72 AD3d 1030, 1031; see Bray v Cox, 38 NY2d 350). Here, the plaintiffs appealed from an order dated November 10, 2010, which granted the defendants' motion for summary judgment dismissing the complaint, but the appeal was dismissed by decision and order on motion of this Court dated October 24, 2011, for failure to prosecute. Nevertheless, under the circumstances, we exercise our discretion to review the issues raised by the plaintiffs on their appeal from the judgment (see Kitt v Podlofsky, 72 AD3d at 1031).

Kalafatis v Royal Waste Servs., Inc., 2012 NY Slip Op 03603 (2nd Dept., 2012)

As a general rule, this Court does not consider an issue on a subsequent appeal which was raised or could have been raised in an earlier appeal which was dismissed for lack of prosecution, although this Court has the inherent jurisdiction to do so (see Rubeo v National Grange Mut. Ins. Co., 93 NY2d 750, 754; Bray v Cox, 38 NY2d 350, 353). While the better practice would have been for the plaintiff to withdraw the prior appeal rather than abandon it, nonetheless, we exercise our discretion to review the issues raised on the appeal from so much of the order dated April 27, 2011, as was made upon reargument (see Franco v Breceus, 70 AD3d 767; Newburger v Sidoruk, 60 AD3d 650; DiGiaro v Agrawal, 41 AD3d 764; Cesar v Highland Care Ctr., Inc., 37 AD3d 393).

Interesting transcript

I haven't seen an unsigned transcript permitted to be used in this context

CPLR R. 3116 Signing deposition; physical preparation; copies
(a) Signing.

CPLR R. 3117

Boadu v City of New York, 2012 NY Slip Op 03581 (2nd Dept., 2012)

The Supreme Court properly considered the deposition transcripts submitted by the Transit Authority in support of its cross motion for summary judgment. Although unsigned, the deposition transcripts were certified by the reporter and the plaintiff did not raise any challenges to their accuracy. Thus, the transcripts qualified as admissible evidence for purposes of the cross motion (see Rodriguez v Ryder Truck, Inc., 91 AD3d 935, 936; Zalot v Zieba, 81 AD3d 935).

Relying on this admissible evidence, the Transit Authority established, prima facie, that the station agent did no more than furnish the police with information which, after an investigation, resulted in the alleged unlawful detention and arrest of the plaintiff. "[A] civilian complainant, by merely seeking police assistance or furnishing information to law enforcement authorities who are then free to exercise their own judgment as to whether an arrest should be made and criminal charges filed, will not be held liable for false arrest or malicious prosecution" (Mesiti v Wegman, 307 AD2d 339, 340 [internal quotation marks omitted]; see Levy v Grandone, 14 AD3d 660, 661). However, in opposition to this prima facie demonstration of entitlement to judgment as [*2]a matter of law, the plaintiff, through his deposition testimony, raised a triable issue of fact as to whether the station agent "affirmatively induced the officer to act, such as taking an active part in the arrest and procuring it to be made or showing active, officious and undue zeal, to the point where the officer is not acting of his own volition" (Mesiti v Wegman, 307 AD2d at 340 [internal quotation marks omitted]). Accordingly, that branch of the Transit Authority's cross motion which was for summary judgment dismissing the complaint insofar as asserted against it was properly denied.

court’s inherent power to dismiss

Atkins-Payne v Branch, 2012 NY Slip Op 03577 (2nd Dept., 2012)

The plaintiff moved pursuant to CPLR 3215 for leave to enter a default judgment against the defendants upon their failure to appear or answer the complaint. The Supreme Court denied the plaintiff's motion on the ground that she had failed to effect proper service on any of the defendants. In addition, the Supreme Court, sua sponte, in effect, directed the dismissal, with prejudice, as time-barred, of all causes of action to recover damages for fraud, based upon the dates of certain transactions as alleged in the plaintiff's papers. None of the defendants had moved to dismiss those causes of action as time-barred, and the plaintiff was not given the opportunity to submit argument or evidence that those causes of action were timely pursuant to CPLR 213(8). The plaintiff appeals from so much of the order as sua sponte, in effect, directed the dismissal, with prejudice, of the causes of action to recover damages for fraud. We reverse the order insofar as appealed from.

"A court's power to dismiss a complaint, sua sponte, is to be used sparingly and only when extraordinary circumstances exist to warrant dismissal" (U.S. Bank, N.A. v Emmanuel, 83 AD3d 1047, 1048; see Rienzi v Rienzi, 23 AD3d 450). Here, the Supreme Court was not presented with any extraordinary circumstances warranting dismissal of the causes of action to recover damages for fraud. Accordingly, the Supreme Court erred in sua sponte, in effect, directing the dismissal, with prejudice, of those causes of action (see During v City of New Rochelle, 55 AD3d 533, 534).

Discovery

Moore v Federated Dept. Stores, Inc., 2012 NY Slip Op 03112 (1st Dept., 2012)

Any right of direct appeal from the intermediate orders terminated with entry of the final judgment dismissing this wrongful termination action for failure to prosecute (see Matter of Aho, 39 NY2d 241, 248 [1976]). Plaintiff did not appeal from the final judgment, and there is no basis for deeming his appeals from the intermediate orders as having been taken from the subsequent judgment (cf. CPLR 5501[c]; 5520[c]).

Were we to consider plaintiff's arguments on appeal, we would nonetheless find them unavailing. The court properly denied plaintiff's motions to strike and compel, as there was no basis in the record to find defendants' conduct in the discovery process to be willful, contumacious, or in bad faith (see Ayala v Lincoln Medical & Mental Health Center, 92 AD3d 542 [2012]). With respect to the court's imposition of sanctions upon plaintiff's counsel, counsel did not appeal from the order or the subsequent judgment awarding sanctions, and plaintiff was not aggrieved by the award and lacks standing to challenge it (see generally CPLR 5511[a]; Matter of Kyle v Lebovits, 58 AD3d 521 [2009], lv dismissed in part and denied in part 13 NY3d 765 [2009], cert denied __ US __ , 130 S Ct 1524 [2010]). Plaintiff was also not aggrieved by the grant of defendant Macy's motion to compel discovery, as plaintiff did not oppose the motion (see Darras v Romans, 85 AD3d 710, 711 [2011]). To the extent plaintiff challenges the denial [*2]of his motion for a stay of enforcement of the order entered July 16, 2010 pending his appeal from the order, his argument is moot (see Diane v Ricale Taxi, Inc., 26 AD3d 232, 232 [2006]).

Merrill Lynch, Pierce, Fenner & Smith, Inc. v Global Strat Inc., 2012 NY Slip Op 02598 (1st Dept., 2012)

In granting the motion to dismiss as against Albert Nasser for lack of personal jurisdiction, Supreme Court stated that it was vacating the judgment as against him. However, the judgment in the record on appeal names Albert Nasser as a defendant from whom plaintiffs have recovery, and it is that judgment that we affirm. We find that plaintiffs made a prima facie showing that Albert is subject to jurisdiction in New York through evidence that in the first three months of 2008, he actively traded in the New York-based Merrill Lynch accounts of Inversiones, his personal holding company, and that he participated by telephone in a March 2008 meeting with Merrill Lynch in New York concerning the trading activities at issue in this case (see Kreutter v McFadden Oil Corp., 71 NY2d 460, 467 [1988]; compare OneBeacon Am. Ins. Co. v Newmont Min. Corp., 82 AD3d 554, 555 [2011] [no evidence that defendant exercised control over the corporation that purchased insurance policies issued by insurers with principal places of business in New York]).

The Nassers' repeated failure to comply with discovery deadlines or offer a reasonable excuse for their noncompliance with discovery requests, as well as their counsel's [*2]misrepresentations in open court as to the cause of one of their violations, give rise to an inference of willful and contumacious conduct warranting the entry of judgment against them (see Turk Eximbank-Export Credit Bank of Turkey v Bicakcioglu, 81 AD3d 494 [2011]). The Nassers were appropriately warned that judgment would be entered against them if their discovery responses were found by the Special Referee to be noncompliant with plaintiffs' requests (see id.; cf. Corner Realty 30/7 v Bernstein Mgt. Corp., 249 AD2d 191, 194 [1998]).

Zimbardi v City of New York, 2012 NY Slip Op 02574 (1st Dept., 2012)

Contrary to plaintiff's contention, the City produced documents relevant to its knowledge of the alleged dangerous condition and, in any event, it was plaintiff's burden to show that the City had prior written notice of the alleged defect, which she failed to do. Nor did she move for sanctions based on the City's alleged wilful failure to produce documents (see CPLR 3126).

Zinger v Service Ctr. of N.Y., Inc., 2012 NY Slip Op 02591 (1st Dept., 2012)

Plaintiff's requests for vehicular insurance policies and governmental filings were irrelevant to his alter-ego claim against the individually named defendant. However, the requests concerning the corporate defendant's bank accounts and credit cards seek documents and information of the type that would yield evidence of misuse of the corporate form (see e.g. Horizon Inc. v Wolkowicki, 55 AD3d 337 [2008]). Accordingly, we find that such records and information, to the extent limited to the period of plaintiff's employment plus one year, are "material and necessary" for the prosecution of the action (CPLR 3101[a]).

Carnegie Assoc. Ltd. v Miller, 2012 NY Slip Op 02422 (1st Dept., 2012) (note the dissent)

The motion court erred in striking the complaint and reply to defendants' counterclaims since neither CPLR § 3126 nor 22 NYCRR 202.26(e) authorizes this sanction under the circumstances. While CPLR § 3126 authorizes the striking of a party's pleadings, this extreme sanction is only authorized when a party "refuses to obey an order for disclosure or willfully refuses to disclose information which the court finds ought to have been disclosed" (CPLR § 3126) (emphasis added). Thus, by its express terms the sanction prescribed by CPLR § 3126 is warranted only upon a party's failure to comply with discovery requests or court orders mandating disclosure (Bako v V.T. Trucking Co., 143 AD2d 561, 561 [1988]; Henry Rosenfeld, Inc. v Bower & Gardner, 161 AD2d 374, 374-375 [1990] [dismissal of a party's pleading appropriate when a party "disobeys a court order and by his conduct frustrates the disclosure scheme provided by the CPLR"]; Bassett v Bando Sangsa Co., 103 AD2d 728, 728 [1984]). Here, where plaintiff had already been sanctioned for its failure to provide discovery and where defendants premised the instant motion to strike plaintiff's pleadings primarily on plaintiff's [*2]failure to proceed with court-ordered mediation, CPLR § 3126 simply does not apply.

Similarly, despite plaintiff's conceded failure to proceed with the court-ordered mediation, it was also error to strike its pleadings pursuant to 22 NYCRR 202.26(e). While 22 NYCRR 202.26 authorizes the trial court to schedule pretrial conferences, a mediation, pursuant to Rule 3 of the Rules of the Commercial Division of the Supreme Court (22 NYCRR 202.70[g]), is not a pretrial conference. More importantly, even if this rule did apply, the only sanction authorized by 22 NYCRR 202.26(e) for a party's failure to appear at a pretrial conference is "a default under CPLR § 3404," which initially only authorizes the striking of the case from the court's trial calendar. Accordingly, here, striking plaintiff's pleadings, which by operation of law resulted in dismissal of this action is not warranted pursuant to 22 NYCRR 202.26(e).

While we agree with the dissent that plaintiff's conduct was egregious, we nevertheless find that the sanction imposed by the motion court, namely, dismissal of plaintiff's complaint and the striking of its reply to defendant's counterclaims was simply not permitted. We further note that, here, plaintiff was in fact penalized for its conduct inasmuch as the motion court granted defendants' motion for costs and fees incurred as a result of plaintiff's failure to proceed to mediation.

In support of its argument that the motion court's order was appropriate, the dissent partly relies on Rule 8(h) of the Commercial Division, Supreme Court, New York County, Rules of the Alternative Dispute Resolution Program. However, the dissent alone raises this argument, one which has never been advanced by any of the parties, either on appeal or below. Therefore, we should not consider it (Misicki v Caradonna, 12 NY3d 511, 519 [2009] ["We are not in the business of blindsiding litigants, who expect us to decide their appeals on rationales advanced by the parties, not arguments their adversaries never made"]). Moreover, contrary to the dissent's remaining position, 22 NYCRR 202.70(g) Rule 12 does not avail plaintiff since like 22 NYCRR 202.26(e), the dismissal promulgated by Rule 12, which is made more clear by its reference to 22 NYCRR 202.27, is for the failure to appear at a conference and not for the failure to proceed to mediation.

Filatava v Rome Realty Group LLC, 2012 NY Slip Op 02261 (1st Dept., 2012)

Defendant appeals from the striking of its answer as a discovery sanction pursuant to CPLR 3126. It is undisputed that defendant violated three express orders to produce documents responsive to plaintiffs' requests. More egregiously, defendant knew it had no business records of the subject premises, as it failed to retain any records when it sold the premises two months after the instant complaint was filed. Yet, it concealed this information from the court and plaintiffs for some two years. As such, there was ample evidence to support the IAS court's [*2]finding that defendant had wilfully delayed and failed to fulfill its obligations in discovery (cf. Banner v New York City Hous. Auth., 73 AD3d 502, 503 [2010]).

Ellis v Park, 2012 NY Slip Op 01864 (1st Dept., 2012)

Dismissal of the complaint was an improvident exercise of discretion, since defendants failed to "show[] conclusively that [plaintiff's] failure to disclose was wilful, contumacious or in bad faith" (Christian v City of New York, 269 AD2d 135, 137 [2000]; see also Mateo v T & H Enters., 60 AD3d 411 [2009]). Contrary to the motion court's findings, the record does not support the view that plaintiff repeatedly refused to comply with orders regarding disclosure. The argument that plaintiff responded only to defendant Prudential's demand for a bill of particulars and not the demand of defendants Parks, is belied by plaintiff's responses to the demand.

Moreover, the November 16, 2009 preliminary conference order directed plaintiff to be deposed on January 6, 2010. However, during a subsequent telephone conference with the court, plaintiff and the Parks agreed to postpone the deposition to a mutually convenient date. Thus, the fact that plaintiff was not deposed by January 6, 2010 does not constitute disobedience of a court order. Plaintiff appeared and was deposed on two dates set by the court and although it is [*2]true that on the third day of her deposition she said she could not stay beyond 11:45 A.M., she provided a reasonable explanation for having to leave and her counsel was actually engaged later that day.

Rosario v Vasquez, 2012 NY Slip Op 01874 (1st Dept., 2012)

Contrary to the motion court's finding, depositions are not needed, since Guzman-Sosa had personal knowledge of the facts (see Avant, 74 AD3d at 534).

Accent Collections, Inc. v Cappelli Enters., Inc., 2012 NY Slip Op 03121 (2nd Dept., 2012)

" The Supreme Court has broad discretion in the supervision of discovery, and its determinations should not be disturbed on appeal unless improvidently made'" (Foster v Herbert Slepoy Corp., 74 AD3d 1139, 1140, quoting Casabona v Huntington Union Free School Dist., 29 AD3d 723, 723). Here, the Supreme Court did not improvidently exercise its discretion in denying that branch of the plaintiff's motion which was to vacate the trial readiness order based upon its determination that, pursuant to a compliance conference order, the additional discovery sought by the plaintiff was waived (see Provident Life & Cas. Ins. Co. v Brittenham, 284 AD2d 518; cf. Summers v Kardex Sys., 210 AD2d 216; see generally Foster v Herbert Slepoy Corp., 74 AD3d at 1140; Casabona v Huntington Union Free School Dist., 29 AD3d at 723).

Crawford v Village of Millbrook, 2012 NY Slip Op 03128 (2nd Dept., 2012)

The Supreme Court providently exercised its discretion in denying the plaintiff's motion on the eve of trial to admit the testimony of a newly identified witness. The plaintiff failed to disclose this witness until six years after commencing the action, and failed to provide a reasonable explanation for his delay in disclosing the identity of the witness (see CPLR 3101; Spectrum Sys. Intl. Corp. v Chemical Bank, 78 NY2d 371, 376; Mayorga v Jocarl & Ron Co., 41 AD3d 132, 134; Ortega v New York City Tr. Auth., 262 AD2d 470).

Colandrea v Choku, 2012 NY Slip Op 03127 (2nd Dept., 2012)

In opposition, the defendants failed to raise a triable issue of fact as to whether the plaintiff was at fault in the happening of the accident (see Vainer v DiSalvo, 79 AD3d at 1024; Yelder v Walters, 64 AD3d 762, 764). To the extent the defendants suggest the possibility that the accident might have been avoided, or that the plaintiff may have been speeding, such assertions, upon this record, are completely speculative and inadequate to withstand summary judgment (see Socci v Levy, 90 AD3d 1020; Loch v Garber, 69 AD3d at 816; Berner v Koegel, 31 AD3d 591, 592; Jacino v Sugerman, 10 AD3d 593, 595). Accordingly, the Supreme Court properly granted the plaintiff's motion for summary judgment on the issue of liability.

The Supreme Court improvidently exercised its discretion, however, in denying those branches of the defendants' timely motion which were to (a) vacate the note of issue and certificate of readiness for trial, (b) strike the matter from the trial calendar, and (c) direct the plaintiff to appear for a deposition and submit to an independent physical examination. "While discovery determinations rest within the sound discretion of the trial court, the Appellate Division is vested with a corresponding power to substitute its own discretion for that of the trial court, even in the absence of abuse" (Andon v 302-304 Mott St. Assoc., 94 NY2d 740, 745). Here, although the defendants may have waived their right to conduct a deposition and independent physical examination of the plaintiff by their failure to schedule and complete the deposition and examination by the dates set forth in a preliminary conference order, the circumstances of this case warranted relieving the defendants of the waiver, particularly since there was no prejudice to the plaintiff (see Barbosa v Capolarello, 52 AD3d 629, 629; High Point of Hartsdale I Condominium v AOI Constr., Inc., 31 AD3d 711; Venia v 18-05 215th St. Owners, 288 AD2d 463; Poltorak v Blyakham, 225 AD2d 600). Accordingly, the Supreme Court should have granted those branches of the defendants' motion which were to (a) vacate the note of issue and certificate of readiness for trial, (b) strike the matter from the trial calendar, and (c) direct the plaintiff to appear for a deposition and submit to an independent physical examination.

33

Present sense impression

Matter of Matter of Allstate Ins. Co. v Stricklin, 2012 NY Slip Op 01812 (2nd Dept., 2012)

Contrary to the appellants' contention, the police accident report was not admissible under the present sense exception to the hearsay rule. To be admissible under this exception, a [*2]statement must be made "substantially contemporaneously" with the witness's observations, and the declarant's description of the relevant events must be "sufficiently corroborated by other evidence" (People v Brown, 80 NY2d 729, 734). As stated by this Court in the case of Matter of Phoenix Ins. Co. v Golanek (50 AD3d 1148, 1150):

"After [the eyewitness] wrote [the plate] number on a piece of paper, [he] was no longer relying upon a present sense of the number, but was relying entirely on the contents of [his] own writing [and thus] . . . the police accident report generated sometime later did not reflect a present sense impression rather than a recalled or recast description of events that were observed in the recent past' (People v Vasquez, 88 NY2d 561, 575 [1996])."

Morever, the evidence at the hearing did not establish how much time elapsed between the imparting of the license plate information to the officer and the preparation of the police accident report. In addition, it was not established that the officer who received the piece of paper at the accident scene was the same one who prepared the police report. Moreover, even assuming that the license plate information was "substantially contemporaneous" with the unidentified witness's observation, there was insufficient evidence of corroboration (cf. Matter of Irizarry v Motor Veh. Indem. Corp., 287 AD2d 716).

Accordingly, under all of the circumstances, it was error to admit the police report into evidence. Since there was no other evidence that the vehicle insured by Autoone was involved in the subject accident, Allstate's petition to stay arbitration of Stricklin's uninsured motorist claim should have been denied, and the proceeding dismissed.