[App Div 2d Dept]

On the face of the record

Interboro Ins. Co. v Fatmir, 89 AD3d 993 (2nd Dept., 2011)

To establish the right to rescind an insurance policy, an insurer must show that its insured made a material misrepresentation of fact when he or she secured the policy (see Novick v Middlesex Mut. Assur. Co., 84 AD3d 1330 [2011]; Varshavskaya v Metropolitan Life Ins. Co., 68 AD3d 855, 856 [2009]; Schirmer v Penkert, 41 AD3d 688, 690 [2007]; Zilkha v Mutual Life Ins. Co. of N.Y., 287 AD2d 713, 714 [2001]). A misrepresentation is material if the insurer would not have issued the policy had it known the facts misrepresented (see Insurance Law § 3105 [b]; Novick v Middlesex Mut. Assur. Co., 84 AD3d at 1330; Varshavskaya v Metropolitan Life Ins. Co., 68 AD3d at 856). "To establish materiality as a matter of law, the insurer must present documentation concerning its underwriting practices, such as underwriting manuals, bulletins, or rules pertaining to similar risks, that show that it would not have issued the same policy if the correct information had been disclosed in the application" (Schirmer v Penkert, 41 AD3d at 690-691).

Here, the plaintiff insurance company established its prima facie entitlement to judgment as a matter of law by demonstrating that its insured made misrepresentations in his application for homeowner's insurance, and that it would not have issued the subject policy had the insured disclosed that he did not reside in the subject premises because dwellings that are not owner occupied are deemed an unacceptable risk under its underwriting guidelines (see Varshavskaya v [*2]Metropolitan Life Ins. Co., 68 AD3d at 856). In opposition, the appellant failed to raise a triable issue of fact. Although the appellant argued in opposition that the plaintiff failed to timely disclaim coverage pursuant to Insurance Law § 3420 (d), a disclaimer pursuant to Insurance Law § 3420 (d) was not required because the policy only provided liability coverage to the insured for premises which he and his household occupied for residential purposes and, thus, "the policy never provided coverage" for the claim at issue (Metropolitan Prop. & Cas. Ins. Co. v Pulido, 271 AD2d 57, 60 [2000]; see generally Zappone v Home Ins. Co., 55 NY2d 131, 138 [1982]). While the plaintiff did not argue in the Supreme Court that a disclaimer was not required, "[o]n appeal, a respondent may [as here] proffer in support of affirmance any legal argument that may be resolved on the record, regardless of whether it has been argued previously, if the matter is one which could not have been countered by the appellant had it been raised in the trial court" (Sega v State of New York, 60 NY2d 183, 190 n 2 [1983]; see Stephan B. Gleich & Assoc. v Gritsipis, 87 AD3d 216 [2011]; Buywise Holding, LLC v Harris, 31 AD3d 681, 682 [2006]).

3123

CPLR § 3123 Admissions as to matters of fact, papers, documents and photographs

Saline v Saline, 2012 NY Slip Op 03162 (2nd Dept., 2012)

Contrary to the defendant's contentions, the trial court properly admitted into evidence certain documents admitted by him to be authentic and upon which it based its findings of fact (see CPLR 3123; Matter of Union Indem. Ins. Co. of N.Y., 89 NY2d 94, 103; Ocampo v Pagan, 68 AD3d 1077).

Hearsay

Rosado v Phipps Houses Servs., Inc., 2012 NY Slip Op 02385 (1st Dept., 2012)

Plaintiff alleges that she slipped and fell in a puddle located on an exterior landing of premises owned, managed and/or operated by defendants, and that two yellow caution cones had been placed against the wall, to her right and left, as she exited, but not in the area of the liquid condition. The presence of caution cones here created a triable issue of fact as to prior actual notice of the condition, as defendants' witness admitted that they would place such caution cones to alert others to a slippery condition and plaintiff denied that the cones were being used to prop open a door, as had been alleged by defendants' witness (see Felix v Sears, Roebuck & Co., 64 AD3d 499 [2009]; Hilsman v Sarwil Assoc., L.P., 13 AD3d 692 [2004]). Additionally, while the hearsay portions of a witness affidavit submitted in opposition to the motion, which referred to an unidentified person or persons having admitted prior notice of the condition, were inadmissible (see Cassanova v General Cinema Corp. of N.Y., 237 AD2d 155 [1997]; Pascarella v Sears, Roebuck and Co., 280 AD2d 279 [2001]), the witness's first hand account of providing defendants with notice of the condition at least 45 minutes before the accident raised triable issues of fact as to prior actual and constructive notice of the condition.

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

In opposition, defendants failed to provide a nonnegligent explanation for the collision (Avant, 74 AD3d at 534); (cf. Ebanks v Triboro Coach Corp., 304 AD2d 406 [2003]). The uncertified police accident report submitted by defendants constitutes hearsay and, in any event, does not support Guzman-Sosa's account of the accident (see Rivera v GT Acquisition 1 Corp., 72 AD3d 525, 526 [2010]).

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).

Quinche v Gonzalez, 2012 NY Slip Op 03158 (2nd Dept., 2012)

Contrary to the plaintiff's contention, the Supreme Court did not err in admitting into evidence at the subject hearing certain audio recordings. The recordings did not constitute inadmissible hearsay. "Hearsay is an out-of-court statement offered to prove the truth of the matter asserted therein" (Gelpi v 37th Ave. Realty Corp., 281 AD2d 392, 392). "However, a statement which is not offered to establish the truth of the facts asserted therein is not hearsay" (id.). Here, the recordings at issue were not offered for the truth of the matter asserted therein. Accordingly, the Supreme Court did not err in admitting the recordings into evidence on this ground. The plaintiff's remaining contentions concerning the admission of these recordings are unpreserved for appellate review.

3211(b) dismiss affirmative defenses

3211(b)

South Point, Inc. v Redman, 2012 NY Slip Op 03165 (2nd Dept., 2012)

The Supreme Court erred in determining that the doctrine of law of the case precluded the granting of the plaintiff's motion pursuant to CPLR 3211(b) to dismiss the affirmative defense asserted by the defendant Helen M. Prescod. The doctrine of law of the case "applies to determinations which were necessarily resolved on the merits in [a] prior order" (Hampton Val. Farms, Inc. v Flower & Medalie, 40 AD3d 699, 701; see Lehman v North Greenwich Landscaping, LLC, 65 AD3d 1293, 1294). Here, contrary to the Supreme Court's determination, the prior order at issue did not address the merits of Prescod's affirmative defense (see Lehman v North Greenwich Landscaping, LLC, 65 AD3d at 1294).

Nevertheless, we affirm the denial of the plaintiff's motion to dismiss Prescod's affirmative defense, albeit on a different ground from that relied upon by the Supreme Court (see [*2]Montalvo v Nel Taxi Corp., 114 AD2d 494, 494; see also Menorah Nursing Home v Zukov, 153 AD2d 13, 19). "A party may move for judgment dismissing one or more defenses, on the ground that a defense is not stated or has no merit" (CPLR 3211[b]). Upon such a motion, the movant bears the burden of demonstrating that a defense is not stated or is without merit as a matter of law (see Butler v Catinella, 58 AD3d 145, 148; Vita v New York Waste Servs., LLC, 34 AD3d 559, 559). The nonmoving defendant is "entitled to the benefit of every reasonable intendment of its pleading, which is to be liberally construed. If there is any doubt as to the availability of a defense, it should not be dismissed" (Federici v Metropolis Night Club, Inc., 48 AD3d 741, 743; see Butler v Catinella, 58 AD3d at 148).

Here, the plaintiff failed to satisfy its burden of demonstrating as a matter of law that the defense at issue was without merit. The defense was premised on Prescod's claim that she has a valid mortgage on the subject property with priority over the plaintiff's mortgage. Although the plaintiff raised numerous issues of fact regarding the validity of Prescod's mortgage, the manner in which it was procured, and the extent to which its existence was disclosed to the plaintiff's predecessor in interest, the plaintiff failed to offer evidence demonstrating as a matter of law that Prescod's defense was without merit (cf. Vita v New York Waste Servs., LLC, 34 AD3d at 559). Accordingly, the plaintiff was not entitled to the relief sought.

CPLR R. 5015 Relief from judgment or order
(a) On motion
(1) excusable default…
(2) newly-discovered evidence…
(3) fraud, misrepresentation, or other misconduct of an adverse party
(4) lack of jurisdiction to render the judgment or order
(5) reversal, modification or vacatur of a prior judgment or order upon which it is based

Mr. Ho Charter Serv., Inc. v Ho, 2012 NY Slip Op 03102 (1st Dept., 2012)

The order entered on or about August 1, 2011 is nonappealable, as it was entered on default within the meaning of CPLR 5511 (see Armin A. Meizlik Co. Inc. v L & K Jewelry Inc., 68 AD3d 530, 531 [2009]).

The motion to vacate the order entered on or about August 1, 2011 should have been granted, as defendant demonstrated a meritorious defense and a reasonable excuse for failing to appear at a preliminary conference (see Armin, 68 AD3d at 531; CPLR 5015[a][1]). Defendant showed that his failure to appear was neither willful nor a pattern of dilatory behavior, but was simply the result of illness and inadvertent law office failure. Indeed, defendant submitted affirmations by his attorneys stating that they failed to note the scheduled preliminary conference date set forth in two prior orders, that the primary attorney assigned to the case was sick and unable to attend the scheduled conference, and that a substitute attorney from the same law office had advised the court that she would not be able to arrive to the conference by the scheduled time (see Armin, 68 AD3d at 531; Chelli v Kelly Group, P.C., 63 AD3d 632 [2009]).

Plaintiff's corporate records and the affidavits based on personal knowledge submitted by the parties, together with prior orders of the court that evaluated the evidence and denied plaintiff injunctive relief, demonstrate merit to the defense.

Feldman v Delaney, 2012 NY Slip Op 03133 (2nd Dept., 2012)

In an action to recover damages for medical malpractice, etc., the plaintiff Tuvia Feldman appeals from an order of the Supreme Court, Westchester County (Colabella, J.), entered April 15, 2011, which denied his motion (1) to vacate an order of the same court dated December 21, 2009, granting the application of the defendants Veronica B. Delaney, Nephrology Associates of Westchester, and Praveen Chander pursuant to 22 NYCRR 202.27 to dismiss the complaint insofar as asserted against those defendants upon his failure to proceed with the trial, and (2) to restore the action to the trial calendar.

ORDERED that the order entered April 15, 2011, is affirmed, with costs.

The appellant's motion, inter alia, to vacate an order dated December 21, 2009, granting the application of the defendants Veronica B. Delaney, Nephrology Associates of Westchester, and Praveen Chander pursuant to 22 NYCRR 202.27 to dismiss the complaint insofar as asserted against them, was properly denied, as it was not made within one year after service of a copy of the order with notice of entry (see CPLR 5015[a][1]; Wold v City of New York, 85 AD3d 776, 777; Valentin v City of New York, 73 AD3d 755, 756; Cazeau v Paul, 2 AD3d 477, 478; Lopez v Imperial Delivery Serv., 282 AD2d 190, 197). Furthermore, the one-year time period should not be extended in the exercise of discretion, since the appellant failed to demonstrate a reasonable excuse for his lengthy delay in moving, among other things, to vacate the order dated December 21, 2009 (see Valentin v City of New York, 73 AD3d at 756; Leinas v Long Is. Jewish Med. Ctr., 72 AD3d 905, 906; Carter v City of New York, 231 AD2d 485, 486). In any event, the appellant failed to demonstrate a reasonable excuse for his failure to proceed with the trial and a potentially meritorious cause of action (see CPLR 5015[a][1]; Schmitt v Jeyalingam, 71 AD3d 757; Nowell v NYU Med. Ctr., 55 AD3d 573, 574; Santiago v Santana, 54 AD3d 929, 930; Bollino v Hitzig, 34 AD3d 711).

Prudence v Wright, 2012 NY Slip Op 03157 (2nd Dept., 2012)

Where, as here, a defendant moves to vacate a judgment entered upon his or her default in appearing or answering the complaint on the ground of lack of personal jurisdiction, the defendant is not required to demonstrate a reasonable excuse for the default and a potentially meritorious defense (see Harkless v Reid, 23 AD3d 622, 622-623; Steele v Hempstead Pub Taxi, 305 AD2d 401, 402). Contrary to the determination of the Supreme Court, the defendant established entitlement to relief from default on the ground that she was not properly served with the summons and complaint pursuant to CPLR 308(4). The affidavit of service of the plaintiff's process server alleged that the process server attempted to deliver the summons and complaint to the defendant at her "dwelling house" or "usual place of abode," rather than her actual place of business, on January 19, 2009, at 7:17 P.M., January 26, 2009, at 6:51 A.M., and February 25, 2009, at 4:03 P.M. After all three unsuccessful attempts, the process server affixed a copy of the summons and complaint to the defendant's door and mailed a copy to the same address, which was alleged to be the defendant's "last known residence." Contrary to these averments in the affidavit of service, the defendant presented proof, inter alia, that the address where service was attempted, as alleged in the affidavit of service, was in fact her office address.

The defendant established that the plaintiff's process server failed to exercise "due diligence" in attempting to effectuate service pursuant to CPLR 308(1) or (2) before using the "affix and mail" method pursuant to CPLR 308(4) (JPMorgan Chase Bank, N.A. v Iancu Pizza, Ltd., 78 AD3d 902, 903 [internal quotation marks omitted]; see Lombay v Padilla, 70 AD3d 1010, 1012). [*2]Due diligence was not exercised because two of the three attempts at service were at times when the defendant could not reasonably be expected to be at work, a national holiday (January 19, 2009) and at 6:51 A.M. on January 26, 2009 (see Krisilas v Mount Sinai Hosp., 63 AD3d 887, 889; O'Connell v Post, 27 AD3d 630; Earle v Valente, 302 AD2d 353; Annis v Long, 298 AD2d 340). Furthermore, no attempt to effectuate service was made at the defendant's actual "dwelling place or usual place of abode" (JPMorgan Chase Bank, N.A. v Iancu Pizza, Ltd., 78 AD3d at 903 [internal quotation marks omitted]; see Earle v Valente, 302 AD2d at 353), nor did the process server make genuine inquiries to ascertain the defendant's actual residence or place of employment (see McSorley v Spear, 50 AD3d 652, 654; Estate of Edward S. Waterman v Jones, 46 AD3d 63, 66).

Under these circumstances, the service of the summons and complaint pursuant to CPLR 308(4) was defective as a matter of law (see JPMorgan Chase Bank, N.A. v Iancu Pizza, Ltd., 78 AD3d at 903; Earle v Valente, 302 AD2d at 354; Gurevitch v Goodman, 269 AD2d 355, 356). Since the Supreme Court had not acquired personal jurisdiction over the defendant, the default judgment entered against her was a nullity (see Fleisher v Kaba, 78 AD3d 1118, 1120; Steele v Hempstead Pub Taxi, 305 AD2d at 402). Accordingly, the defendant's motion, in effect, to vacate the judgment entered upon her default and to dismiss the complaint on the ground of lack of personal jurisdiction should have been granted.

We note that the action was timely commenced by filing the summons and complaint in the office of the Clerk of Kings County. Under the circumstances of this case, despite the dismissal of the complaint on the ground of lack of personal jurisdiction, the plaintiff should be permitted, if she be so advised, to re-serve the appellant within 120 days of the date of this decision and order (see CPLR 306-b; Gurevitch v Goodman, 269 AD2d at 356).

Rocco v Family Foot Ctr., 2012 NY Slip Op 03161 (2nd Dept., 2012)

Almost a year later, on April 20, 2010, Lombardi served the plaintiff with a copy of the order entered May 22, 2009, with notice of entry. The plaintiff was unaware that the complaint had been dismissed until she received the notice of entry of the order. The plaintiff then moved by notice of motion dated May 14, 2010, (a) pursuant to CPLR 5015(a)(1) to vacate the order entered May 22, 2009, (b) to restore the action to the trial calendar, and (c) pursuant to CPLR 3124 to compel Zawada to appear for a deposition. In the order appealed from, the Supreme Court denied the plaintiff's motion. The plaintiff appeals, and we reverse.

In order to vacate a default in opposing a motion pursuant to CPLR 5015(a)(1), the moving party is required to demonstrate a reasonable excuse for his or her default and a potentially meritorious opposition to the motion (see Thapt v Lutheran Med. Ctr., 89 AD3d 837, 837; Bazoyah v Herschitz, 79 AD3d 1081, 1081; Raciti v Sands Point Nursing Home, 54 AD3d 1014; Montague v Rivera, 50 AD3d 656, 657; St. Rose v McMorrow, 43 AD3d 1146). Here, the plaintiff established that her failure to oppose Zawada's motion was neither willful nor deliberate (see Raciti v Sands Point Nursing Home, 54 AD3d 1014; Simpson v Tommy Hilfiger U.S.A., Inc., 48 AD3d 389; Franco Belli Plumbing & Heating & Sons, Inc. v Imperial Dev. & Constr. Corp., 45 AD3d 634). Her attorney's affirmation established that the failure of the attorney's firm to diary the return date of Zawada's motion was inadvertent and an isolated incident.

The plaintiff also established that her opposition to Zawada's motion was potentially meritorious. In opposition to a motion pursuant to CPLR 3404 to dismiss the complaint for failure to prosecute, the plaintiff must "demonstrate a [potentially] meritorious cause of action, a reasonable excuse for the delay, and a lack of intent to abandon the action, and that the defendant[] would not be prejudiced by the delay" (Botsas v Grossman, 51 AD3d 617, 617). Here, the plaintiff demonstrated through the affidavit of her expert that she had a potentially meritorious cause of action (see Kahgan v Alwi, 67 AD3d 742; Rodriguez v United Parcel Serv., Inc. of Ohio, 17 AD3d 658, 658; Sanchez v Denkberg, 284 AD2d 446). The plaintiff also demonstrated a reasonable excuse for her delay in moving to restore the action to the trial calendar and her lack of intent to abandon the action through her attorney's affirmation and exhibits presented on the motion and in reply, which showed that her attorney had been diligently attempting to schedule the depositions, but was unable to do so as of the date of Zawada's motion (see Kahgan v Alwi, 67 AD3d 742; Rodriguez v United Parcel Serv., Inc. of Ohio, 17 AD3d at 658; Sanchez v Denkberg, 284 AD2d 446). In addition, the plaintiff demonstrated that Zawada and Lombardi would not suffer any prejudice if the action was restored to the trial calendar (see Kahgan v Alwi, 67 AD3d 742; Rodriguez v United Parcel Serv., Inc. of Ohio, 17 AD3d at 658; Sanchez v Denkberg, 284 AD2d 446). The plaintiff also acted promptly to cure her default upon learning of it (see Raciti v Sands Point Nursing Home, 54 AD3d at 1014). [*3]

In light of the foregoing, the plaintiff established that the Supreme Court improvidently exercised its discretion by denying those branches of her motion which were pursuant to CPLR 5015(a)(1) to vacate the order entered May 22, 2009, and to restore the action to the trial calendar (see Kahgan v Alwi, 67 AD3d 742). The Supreme Court also improvidently exercised its discretion in denying that branch of the plaintiff's motion which was pursuant to CPLR 3124 to compel Zawada to appear for a deposition before trial given Zawada's failure to comply with prior court orders (see CPLR 3124).

Accordingly, the Supreme Court should have granted the plaintiff's motion, and thereupon denied Zawada's motion to dismiss the complaint for failure to prosecute, and we remit the matter to the Supreme Court, Queens County, to schedule depositions.

Bill of Particulars “not to be used to obtain evidentiary material”

Fremont Inv. & Loan v Gentile, 2012 NY Slip Op 03136 (2nd Dept., 2012)

The purpose of a bill of particulars is to amplify the pleadings, limit the proof, and prevent surprise at trial (see Jones v LeFrance Leasing L.P., 81 AD3d 900, 902; Mendelson v Szczupak, 199 AD2d 479; Nuss v Pettibone Mercury Corp., 112 AD2d 744, 744). "A bill of particulars may not be used to obtain evidentiary material" (Nuss v Pettibone Mercury Corp., 112 AD2d at 744; see Tully v Town of N. Hempstead, 133 AD2d 657; Ginsberg v Ginsberg, 104 AD2d 482, 484).

Here, the appellant's demand for a bill of particulars improperly included requests for detailed information of an evidentiary nature (see Posh Pillows v Hawes, 138 AD2d 472, 474). Thus, the responses in the plaintiff's bill of particulars objecting to those demands constituted an adequate response. Accordingly, the Supreme Court properly denied that branch of the appellant's motion which was to preclude the plaintiff from giving evidence at trial with respect to the denials of and defenses to the appellant's counterclaim, as set forth in the plaintiff's bill of particulars.

Preliminary Injunction treated as Summary Judgment

Grand Aerie of Fraternal Order of Eagles v Mostrando, 2012 NY Slip Op 03139 (2nd Dept., 2012)

A "motion for a temporary injunction opens the record and gives the court authority to pass upon the sufficiency of the underlying pleading" (Guggenheimer v Ginzburg, 43 NY2d 268, 272). However, this power does not extend to an evaluation of conflicting evidence (see Livas v Mitzner, 303 AD2d 381, 382; Ratner v Steinberg, 259 AD2d 744). Accordingly, the motion court may not, on its own initiative, convert a motion for a preliminary injunction into one for summary judgment without giving adequate notice to the parties and affording them an opportunity to lay bare their proof (see Ugiri Progressive Community, Inc. v Ukwuozo, 57 AD3d 656, 657; 68 Burns New Holding, Inc. v Burns St. Owners Corp., 18 AD3d 857). Here, there is no indication in the record that the Supreme Court provided notice to the parties that the motion and cross motion for preliminary injunctive relief would be treated as a motion and cross motion for summary judgment, or that the parties agreed to chart a summary judgment course (see Moore v Ruback's Grove Campers' Assn., Inc., 85 AD3d 1220, 1221; Teri-Nichols Indus. Food Merchants, LLC v Elk Horn Holding Corp., 37 AD3d 198, 200). Accordingly, the Supreme Court erred in treating the motion and cross motion as if they were for summary judgment and determining them on that basis.

Under the unique factual circumstances of this case, we decline to exercise our discretion to determine that branch of Grand Aerie's motion which was for a preliminary injunction, or the cross motion for a preliminary injunction (see Moore v Ruback's Grove Campers' Assn., Inc., 85 AD3d at 1221; Byrne Compressed Air Equip. Co. v Sperdini, 123 AD2d 368, 369). Rather, we [*3]remit the matter to the Supreme Court, Westchester County, for further proceedings, including the determinations of that branch of the motion and the cross motion (see Ugiri Progressive Community, Inc. v Ukwuozo, 57 AD3d at 657).

Bureaucracy

DeMarquez v Gallo, 2012 NY Slip Op 03130 (2nd Dept., 2012)

On March 22, 2007, the plaintiff, a passenger in a motor vehicle, was involved in an accident with another motor vehicle, owned and operated by the defendants. The plaintiff commenced this action against the defendants to recover damages for personal injuries allegedly sustained by her as a result of the defendants' negligence. After the plaintiff filed a note of issue, on May 15, 2001, the parties appeared in the jury scheduling part to select a jury. On that day, the Supreme Court directed the transfer of the action to Civil Court, Kings County, pursuant to CPLR 325(d). Due to a clerical error, the case was inadvertently marked off the trial calendar rather than transferred to the Civil Court.

Upon discovering this clerical error, the plaintiff moved to restore the case to the trial calendar. The Supreme Court denied that motion in an order dated August 18, 2004. The plaintiff appealed and, by decision and order dated May 23, 2006, this Court reversed the order dated August 18, 2004, vacated the dismissal of the action, and restored the action to the trial calendar (see DeMarquez v Gallo, 29 AD3d 853).

Subsequent to this Court's decision and order dated May 23, 2006, restoring the action to the trial calendar, the plaintiff was erroneously informed by a clerk of the Supreme Court that she had to move again to restore the action. As a result, the plaintiff made a subsequent motion to restore the action, relying upon this Court's decision and order dated May 23, 2006. The Supreme Court denied the plaintiff's motion in an order dated August 4, 2009.

After first moving unsuccessfully to reargue the motion to restore, the plaintiff moved for leave to renew her motion to restore the action to the trial calendar. In the order appealed from, the Supreme Court denied the plaintiff's motion for leave to renew. The plaintiff appeals and we reverse.

Venue

CPLR § 503 Venue based on residence

CPLR § 510 Grounds for change of place of trial

CPLR R. 511 Change of place of trial

Simon v Usher, 2012 NY Slip Op 01544 (1st Dept., 2012)

The motion to change venue was properly granted upon the grounds that, except for defendants Usher and Usher, M.D., P.C., all of the defendants and plaintiffs reside in Westchester County, and that while Usher, M.D., P.C., maintains a satellite office in Bronx County that it rents one day per month, Usher's primary office is located in Westchester County, the office where plaintiff was treated. Thus, movants met their initial burden of establishing that the Bronx County venue chosen by plaintiffs is improper (CPLR 503[a]; 510[1]; Hernandez v Seminatore, 48 AD3d 260 [2008]), and since [*2]plaintiffs forfeited their right to select the venue by choosing an improper venue in the first instance, venue is properly placed in Westchester County, where most of the parties reside (Weiss v Wal-Mart Stores E., L.P., 83 AD3d 461 [2011]).

Lapidus v 1050 Tenants Corp., 2012 NY Slip Op 02842 (2nd Dept., 2012)

A party moving for a change of venue pursuant to CPLR 510(3) has the burden of demonstrating that the convenience of material witnesses and the ends of justice will be promoted by the change (see CPLR 510[3]; McManmon v York Hill Hous., Inc., 73 AD3d 1137, 1138; Rochester Drug Coop., Inc. v Marcott Pharmacy N. Corp., 15 AD3d 899, 899; Heinemann v Grunfeld, 224 AD2d 204). In doing so, the moving party must set forth (1) the names, addresses, and occupations of prospective witnesses, (2) the facts to which the prospective witnesses will testify at trial, so that the court may judge whether the proposed evidence of the prospective witnesses is necessary and material, (3) a statement that the prospective witnesses are willing to testify, and (4) a statement that the prospective witnesses would be greatly inconvenienced if the venue of the action was not changed (see Lafferty v Eklecco, LLC, 34 AD3d 754, 755; O'Brien v Vassar Bros. Hosp., 207 AD2d 169, 172).

Here, the defendant failed to establish that the real estate agent who cobrokered the sale of the plaintiffs' apartment in its cooperative building would be greatly inconvenienced if venue was not changed to New York County (see McManmon v York Hill Hous., Inc., 73 AD3d at 1138; Walsh v Mystic Tank Lines Corp., 51 AD3d 908; Ferndandes v Lawrence, 290 AD2d 412; Blumberg v Salem Truck Leasing, 276 AD2d 577; Maynard v Oakes, 144 AD2d 229, 230), and failed to satisfy all of the required criteria for a change of venue with respect to an attorney who served the defendant [*2]with a restraining notice in a related action. The remaining prospective witnesses identified by the defendant are its employees or agents, whose convenience is not a factor in considering a motion for a change of venue pursuant to CPLR 510(3) (see McManmon v York Hill Hous., Inc., 73 AD3d at 1138; Curry v Tysens Park Apts., 289 AD2d 191; Cilmi v Greenberg, Trager, Toplitz & Herbst, 273 AD2d 266, 267; D'Argenio v Monroe Radiological Assoc., 124 AD2d 541, 542). Accordingly, the defendant's motion pursuant to CPLR 510(3) to change the venue of the action from Suffolk County to New York County based upon the convenience of material witnesses should have been denied.

Sanctions and Contempt (civil and criminal)

Visual Arts Found., Inc. v Egnasko, 2012 NY Slip Op 00646 (1st Dept., 2012)

The motion court improperly denied plaintiff's request for sanctions in its entirety. The court is directed to conduct a hearing to quantify the damages that plaintiff incurred from those [*2]aspects of defendants' litigation conduct that were "frivolous," including, impending discovery, the filing of meritless counterclaims and conduct which was "undertaken primarily to delay or prolong the resolution of the litigation" (22 NYCRR 130-1.1[c][2]). We note that, as Louis Egnasko is presently incarcerated, the hearing may be conducted through written submissions (see 22 NYCRR 130-1.1[d]).

Pentalpha Enters., Ltd. v Cooper & Dunham LLP, 2012 NY Slip Op 00044 (1st Dept., 2012)

Plaintiffs now appeal, having lost in no fewer than four courts of competent jurisdiction, and despite having been warned in the court below that any further prosecution of this matter [*2]would be dangerously close to sanctionable conduct. We are of the opinion that plaintiffs' appeal must, again, be denied on the merits; and that, with this appeal, the conduct of plaintiffs and their attorneys has crossed the line from zealous advocacy to that which is sanctionable under 22 NYCRR 130-1.1.

Commissioners of State Ins. Fund v Kernell, 2012 NY Slip Op 00482 (2nd Dept., 2012)

Contrary to the defendant's contention, the Supreme Court properly denied that branch of his motion which was to hold the plaintiff's counsel in civil contempt. "In order to find that contempt has occurred in a given case, it must be determined that a lawful order of the court, clearly expressing an unequivocal mandate, was in effect," and "[i]t must appear, with reasonable certainty, that the order has been disobeyed" (Matter of McCormick v Axelrod, 59 NY2d 574, 583; see Rubin v Rubin, 78 AD3d 812, 813). In this case, there was no order of the court in effect, expressing an unequivocal mandate, which the plaintiff's counsel disobeyed. Accordingly, the Supreme Court properly denied that branch of the defendant's motion (see Wheels Am. N.Y., Ltd v Montalvo, 50 AD3d 1130, 1130-1131).

The Supreme Court improvidently exercised its discretion, however, in denying that branch of the defendant's motion which was to impose sanctions upon the plaintiff and its counsel pursuant to 22 NYCRR 130-1.1. The defendant demonstrated that the plaintiff and its counsel engaged in frivolous conduct in that they either did not have the necessary documentation upon which to formulate or support a meritorious claim, or, being in possession of the documentation, knew or should have known, based upon prior litigation and correspondence from the defendant, that the plaintiff's claim was completely without merit in law. Under the circumstances, we deem it [*2]appropriate to impose sanctions upon the plaintiff in the sum of $2,500, and upon the plaintiff's counsel in the sum of $1,000 (see 22 NYCRR 130-1.1), payable pursuant to 22 NYCRR 130-1.3.

HSBC Mtge. Corp. v Oberlander, 2012 NY Slip Op 00335 (2nd Dept., 2012)

"A motion to punish a party for civil contempt is addressed to the sound discretion of the motion court" (Chambers v Old Stone Hill Rd. Assoc., 66 AD3d 944, 946; see Educational Reading Aids Corp. v Young, 175 AD2d 152). "In order to prevail on such a motion, the moving party must demonstrate that the party charged with contempt violated a clear and unequivocal mandate of the court, thereby prejudicing the moving party's rights" (Bais Yoel Ohel Feige v Congregation Yetev Lev D'Satmar of Kiryas Joel, Inc., 78 AD3d 626, 626; see McCain v Dinkins, 84 NY2d 216, 226; Chambers v Old Stone Hill Rd. Assoc., 66 AD3d at 946; Matter of Rothschild v Edwards, 63 AD3d 744, 745; Galanos v Galanos, 46 AD3d 507, 508; Rienzi v Rienzi, 23 AD3d 447, 449).

Under the circumstances of this case, the Supreme Court providently exercised its discretion in denying that branch of the motion of the defendant David Oberlander which was to hold the plaintiff and its attorneys in civil contempt for transferring title to the subject real property while a stay pending the hearing and determination of an appeal was in effect. Oberlander failed to meet his burden so as to warrant holding the plaintiff and its attorneys in civil contempt.

Town Bd. of Town of Southampton v R.K.B. Realty, LLC, 2012 NY Slip Op 00200 (2nd Dept., 2012)

"To sustain a finding of either civil or criminal contempt based on an alleged violation of a court order it is necessary to establish that a lawful order of the court clearly expressing an unequivocal mandate was in effect," that "the order has been disobeyed," and that the charged party "had knowledge of the court's order" (Matter of Department of Envtl. Protection of City of N.Y. v Department of Envtl. Conservation of State of N.Y., 70 NY2d 233, 240; see Town of Copake v 13 Lackawanna Props., LLC, 73 AD3d 1308, 1309). The same act may be punishable as both a criminal and civil contempt (see Town of Copake v 13 Lackawanna Props., LLC, 73 AD3d at 1309). Civil contempt must be proven by clear and convincing evidence and requires a showing that the rights of a party have been prejudiced (see McCain v Dinkins, 84 NY2d 216, 226; Incorporated Vil. of Plandome Manor v Ioannou, 54 AD3d 365, 366). Such a showing is not needed to prove criminal contempt "since the right of the private parties to the litigation is not the controlling factor" (Matter of Department of Envtl. Protection of City of N.Y. v Department of Envtl. Conservation of State of N.Y., 70 NY2d at 240). "A key distinguishing element between civil and criminal contempt is the degree of willfulness of the subject conduct. To be found guilty of criminal contempt, the contemnor usually must be shown to have violated the order with a higher degree of willfulness than is required in a civil contempt proceeding" (id.; McCain v Dinkins, 84 NY2d at 226; Dalessio v Kressler, 6 AD3d 57, 66). Moreover, criminal contempt must be proven beyond a reasonable doubt (see Muraca v

Category: [App Div 2d Dept]