Category: [App Div 2d Dept]

Discovery, electronic and otherwise

CPLR § 1021 Substitution procedure; dismissal for failure to substitute; presentation of appeal

CPLR § 1024 Unknown parties

CPLR § 3126 Penalties for refusal to comply with order or to disclose

Henderson-Jones v City of New York, 2011 NY Slip Op 06327 (1st Dept., 2011)

By order entered on June 1, 2010, the court stated, "Upon the foregoing papers, it is ordered that this motion to strike defendant's answer is denied."

 

"[I]t is well settled that the drastic remedy of striking a party's pleading pursuant to CPLR 3126 for failure to comply with a discovery order is appropriate only where the moving party conclusively demonstrates that the non-disclosure was willful, contumacious or due to bad faith" (McGilvery v New York City Tr. Auth., 213 AD2d 322, 324 [1995]). Willful and contumacious behavior can be inferred by a failure to comply with court orders, in the absence of adequate excuses (see Johnson v City of New York, 188 AD2d 302 [1992]; Nunez v City of New York, 37 AD3d 434 [2007]). A party that permits discovery to "trickl[e] in . . [with a] cavalier attitude . . should not escape adverse consequence" (Figdor v City of New York, 33 AD3d 560, 561 [2006]).

 

As drastic as the penalty of striking an answer is, it serves the important function of deterring obstreporous litigation behavior. Indeed, the Court of Appeals recently made the following observation:

"As this Court has repeatedly emphasized, our court system is dependent on all parties engaged in litigation abiding by the rules of proper practice. The failure to comply with deadlines not only impairs the efficient functioning of the courts and the adjudication of claims, but it places jurists unnecessarily in the position of having to order enforcement remedies to respond to the delinquent conduct of members of the bar, often to the detriment of the litigants they represent. Chronic noncompliance with deadlines breeds disrespect for the dictates of the Civil Practice Law and Rules and a culture in which cases can linger for years without resolution. Furthermore, those lawyers who engage their best efforts to comply with practice rules are also effectively penalized because they must somehow explain to their clients why they cannot secure timely responses from recalcitrant adversaries, which leads to the erosion of their attorney-client relationships as well. For these reasons, it is important to adhere to the position we declared a decade ago that if the credibility of court orders and the integrity of our judicial system are to be maintained, a litigant cannot ignore court orders with impunity" (Gibbs v St. Barnabas Hosp., 16 NY3d 74, 81 [2010] [internal quotation marks, alteration, and citations omitted]).

 

 

Defendants' behavior in this matter clearly implicates the values articulated in Gibbs. Plaintiff was required to serve three discovery notices on defendants to determine the identities of the officers who executed the warrant, and to this day defendants have not complied. The information sought is simple and straightforward, and, most importantly, easily discoverable. The discovery demands were made in addition to a FOIL request and the furnishing of an authorization designed to lessen defendants' burden in searching for the appropriate names. Moreover, defendants were ordered by the court, on no fewer than three occasions, to produce documents containing the officers' names or to reveal the names outright. To the extent defendants made any effort to divulge the names of the officers who executed the search warrant, they made the effort only because plaintiff pressed the issue. It is not unreasonable to deduce from this record that had plaintiff not sought enforcement of unequivocal court orders requiring the production of the officers' names, defendants, to this day, would not have provided even the scant information that they eventually provided. Moreover, defendants failed to demonstrate that they even attempted to comply with their discovery obligations. An affidavit regarding the unavailability of documents that are the subject of a discovery order must document a thorough search conducted in good faith. It should include details such as "where the subject records were likely to be kept, what efforts, if any, were made to preserve them, whether such records were routinely destroyed, [and] whether a search [was] conducted in every location where the records were likely to be found" (Jackson v City of New York, 185 AD2d 768, 770 [1992]).

 

Here, the affidavits submitted by defendants reveal that the efforts that defendants maintain they took to ascertain the names of the officers were so unimaginative and lacking in diligence that it is hard to characterize them as anything other than willfully designed to thwart plaintiff. Searching old desks and lockers is woefully insufficient. As demonstrated by the unchallenged affidavit by plaintiff's expert, the Police Department is a sophisticated bureaucracy with a system for collecting and storing information concerning arrests and prisoner processing that is not limited to the furniture and notebooks assigned to the officers involved. Indeed, defendants did not even attempt to explain why it would have been futile to search the areas and databases suggested by plaintiff's expert. They addressed the expert's opinion only to the extent of impugning his qualifications.

 

Defendants' argument that plaintiff's request for the documents containing the names of all 50 of the Gang Squad officers was overbroad reveals a disdain for the numerous court orders issued in this case. From the early stages of the litigation, defendants were directed, in absolute terms, to disclose the names of the officers involved in the execution of the warrant on plaintiff's apartment. Thus, the format of plaintiff's initial requests for the information is irrelevant. Defendants could have appealed from the orders, but they did not. That they continue to argue, even now, that plaintiff asked for the documents in an imprecise manner confirms their outright disdain for the court's authority to supervise discovery.

 

As to the substitution of Sergeant Van Orden, plaintiff demonstrated that she made a diligent inquiry to identify the names of the officers involved before commencing this action (see CPLR 1024; Goldberg v Boatmax://, Inc., 41 AD3d 255 [2007]). She served the unidentified officers by an alternative means of service authorized by the court pursuant to CPLR 308(5) (see Harkness v Doe, 261 AD2d 846 [1999]). Thus, she should have been permitted to substitute Van Orden as a defendant. We reject defendants' position that plaintiff waited too long to move to substitute Van Orden; the substitution was "deemed" effective when plaintiff learned of Van Orden's identity (CPLR § 1024; see Woodburn Ct. Assoc. I v Wingate Mgt. Co., 243 AD2d 1043,  1045 [1997]).

Elias v City of New York, 2011 NY Slip Op 06330 (1st Dept., 2011)

In a June 9, 2010 order, the court directed the City "to respond to [plaintiff's] discovery notice dated 1/15/10 for the location of west side of Riverside Dr at Tiemann PL north to St Clair and south to W 122nd." On or about July 12, 2010, the City responded to the court's June 9, 2010 order. An appended DOT form letter dated July 6, 2010 again advised that a search regarding "Riverside Drive and Tiemann Place, Manhattan" "produced no records" for the two years prior to and including the day of the accident.

In August 2010, plaintiff again moved for an order striking the City's answer on the ground that the City had willfully failed to comply with numerous discovery orders. In opposition, the City, emphasizing the drastic nature of the relief sought, argued that its conduct was not "willful and contumacious" and that when such a showing has not been made, an appropriate sanction for dilatory conduct is to permit a defaulting party "one final opportunity to comply." Further, the City contended that, in its submissions dated July 12, 2010 and May 11, 2010, it had fully complied with the court's June 9, 2010 order and adequately responded to plaintiff's January 15, 2010 supplemental discovery notice.

In an order dated October 13, 2010, the court denied nine of plaintiff's demands, three of them on the ground that "City represents documents have been produced." But the court ordered the City to produce, within thirty days, "written complaints, and/or prior written notices, repair orders, [and] cut forms, for the sidewalk on the west side of Riverside Drive, at its intersection with Tiemann Place, for 2 years prior to the date of accident" and to provide an "affidavit if no documents exist" within 45 days. Finally, the court stated that "[f]ailure to comply with this order will result in the striking of the City's answer (emphasis in original)."

In sum, although over three years had passed since plaintiff had first sought this discovery which is central to the prosecution of his action, and despite the nine court orders directing defendant to comply with outstanding discovery, the motion court acceded to defendant's request  to be given one more opportunity to provide the discovery. Defendant has offered no excuse for its failure to produce the documents. Apparently, the imposition by this Court of a significant sanction was not sufficient to deter defendant from continuing its cavalier noncompliance with court-ordered discovery. In our view, the history of defendant's untimely, unresponsive and lax approach to complying with the court's previous orders warrants the striking of defendant's answer (see Byam v City of New York, 68 AD3d 798 [2009]).

Wright v Mount Vernon Hosp., 2011 NY Slip Op 07417 (2nd Dept., 2011)

As a sanction against a party who "refuses to obey an order for disclosure or willfully fails to disclose information which the court finds ought to have been disclosed," a court may issue an order, inter alia, "prohibiting the disobedient party . . . from producing in evidence designated things or items of testimony," or "striking out pleadings" (CPLR 3126[2], [3]). Here, the plaintiff's willful and contumacious conduct can be inferred from the plaintiff's repeated failure to comply with orders directing that her deposition be commenced or completed by a date certain, the plaintiff's adjournments of her deposition, and the inadequate excuses offered to explain her noncompliance (see Commisso v Orshan, 85 AD3d 845; Rawlings v Gillert, 78 AD3d 806, 807; Caccioppoli v Long Is. Jewish Med. Ctr., 271 AD2d 565, 566). Although the plaintiff's conduct was willful and contumacious, contrary to the contention of the defendant Mount Vernon Hospital, under the  circumstances of this case, the sanction of striking the complaint would have been too harsh. Accordingly, the Supreme Court providently exercised its discretion in granting its motion pursuant to CPLR 3126 to the extent of precluding the plaintiff from testifying at trial.

The Supreme Court properly denied that branch of the plaintiff's motion which was for leave to renew. The additional facts submitted upon renewal were personally known to the plaintiff when the original motion was made, and she did not proffer a reasonable excuse for her failure to present those facts at that time (see Saunds v Estate of Johnson, 29 AD3d 670, 671; Caramoor Capital Group v Blauner, 302 AD2d 550; Caffee v Arnold, 104 AD2d 352).

 Kasoff v KVL Audio Visual Servs., Inc., 2011 NY Slip Op 06651 (1st Dept., 2011)

Plaintiff's motion to strike should have been granted to the extent of prohibiting defendants from offering evidence in support of the contention that plaintiff was fully paid the Miscellaneous commission of $47,731.47, and awarding plaintiff that amount. The record establishes that defendants' counsel actively interfered with discovery by intercepting documents under subpoena to a third party. Defendants also admittedly altered a commission report pertaining to the Miscellaneous account and produced it in the course of discovery as if it were the original business record. These acts, together, evidence a sanctionable pattern of behavior (see 317 W. 87 Assoc. v Dannenberg, 159 AD2d 245, 245-246 [1990]; see also Garnett v Hudson Rent A Car, 258 AD2d 559 [1999]) requiring preclusion.

Facey v Silver Express Cab Corp., 2011 NY Slip Op 06549 (2nd Dept., 2011)

As a sanction against a party who "refuses to obey an order for disclosure or wilfully fails to disclose information which the court finds ought to have been disclosed," a court may issue an order, inter alia, "prohibiting the disobedient party . . . from producing in evidence designated things or items of testimony" or "striking out pleadings" (CPLR 3126 [2], [3]). A court may invoke the drastic remedy of striking a pleading, however, only upon a clear showing that the failure to comply with court-ordered discovery was willful and contumacious (see Argo v Queens Surface Corp., 58 AD3d 656 [2009]; Paca v City of New York, 51 AD3d 991, 993 [2008]). Here, the record does not support a finding that the appellants willfully and contumaciously failed to produce the defendant Mohammad Akbar for a deposition. Under the circumstances, the appropriate remedy was an order precluding the appellants from calling Akbar as a witness at trial (cf. Patel v DeLeon, 43 AD3d 432, 433 [2007]; Williams v Ryder TRS, Inc., 29 AD3d 784, 785 [2006]).

Tener v Cremer, 2011 NY Slip Op 06543 (1st Dept., 2011)

The Uniform Rules addressing the discovery of ESI are fairly recent. They took effect in 2009. However, the Commercial Division Rules have addressed discovery of ESI for some time. Rule 8(b) of the rules contains requirements similar to those in the Uniform Rules. The Commercial Division for Supreme Court, Nassau County has built on Commercial Division rule 8(b) to develop the most sophisticated rules concerning discovery of ESI in the State of New York. That court also publishes in depth guidelines for the discovery of ESI (the Nassau Guidelines). While aimed at parties, the Nassau Guidelines are appropriate in cases, such as this, where a nonparty's data is at issue.  

ESI is difficult to destroy permanently. Deletion usually only makes the data more difficult to access. Accordingly, discovery rules contemplate data recovery. For instance, the Uniform Rules include the "anticipated cost of data recovery and proposed initial allocation of such cost" in the scope of electronic discovery (Uniform Rules for Trial Courts [22 NYCRR] § 202.12[c][3]).

The Nassau Guidelines urge that parties should be prepared to address the production of ESI that may have been deleted. The Nassau Guidelines state that at the preliminary conference, counsel for the parties should be prepared to discuss:

"identification, in reasonable detail, of ESI that is or is not reasonably accessible, without undue burden or cost, the methods of storing and retrieving ESI that is not reasonably accessible, and the anticipated costs and efforts involved in retrieving such ESI."

(New York State Supreme Court, Commercial Division, Nassau County, Guidelines for Discovery of Electronically Stored Information [ESI]), effective June 1, 2009, II[c][4]).

The Nassau Guidelines also suggest that the parties be prepared to discuss "the need for certified forensic specialists and/or experts to assist with the search for and production of ESI" (id. at II [c][13]) Most important, the Nassau Guidelines do not rule out the discoverability of deleted data, but rather suggest a cost/benefit analysis involving how difficult and costly it would be to retrieve it:

"As the term is used herein, ESI is not to be deemed inaccessible' based solely on its source or type of storage media. Inaccessibility is based on the burden and expense of recovering and producing the ESI and the relative need for the data" (id. at IV).[FN4]

The Federal Rules of Civil Procedure take a similar, although slightly more restrictive, approach. Rule 45 provides specific protections to non-parties. A person responding to a subpoena "need not provide discovery of electronically stored information from sources that the person identifies as not reasonably accessible because of undue burden or cost" (Fed Rules Civ  Pro rule 45[d][1][D]). Moreover, "non-party status is a significant factor in determining whether the burden imposed by a subpoena is undue" (Whitlow v Martin, 263 FRD 507, 512 [CD Ill 2009]). Nevertheless, a federal court may still "order discovery from such sources if the requesting party shows good cause, considering the limitations of Rule 26(b)(2)(C)" (Fed Rules Civ Pro rule 45[d][1][D]). Rule 26(b)(2)(C)(i)-(iii) requires a court to limit any discovery: (1) "that is unreasonably cumulative or duplicative," (2) "can be obtained from some other source that is more convenient, less burdensome or less expensive," (3) "where the party has already had ample opportunity to obtain the information by discovery in the action" or (4) when "the burden or expense of the proposed discovery outweighs its likely benefit, considering the needs of the case, the amount in controversy, the parties' resources, the importance of the issues at stake in the action, and the importance of discovery in resolving the issues." The Advisory Committee Notes explain that the costs of retrieving the information are properly part of this analysis.

Meanwhile, some federal courts have suggested strict limits on the discovery of specific types of data that are typically overwritten or ephemeral. For example, the Seventh Circuit Electronic Discovery Pilot Program has adopted several "principles" to guide litigants through the discovery of ESI. In particular, Principle 2.04 governing the scope of preservation states that certain categories of ESI "generally are not discoverable in most cases." (Seventh Circuit Electronic Discovery Committee, Seventh Circuit Electronic Discovery Pilot Program, 14-15, Oct. 1, 2009). These categories include:

1 "Deleted," slack," fragmented," or "unallocated" data on hard drives; 2 Random access memory (RAM) or other ephemeral data; 3 On-line access data such as temporary internet files, history, cache, cookies etc; 4 Data in metadata fields that are frequently updated automatically, such as last-opened dates; 5 Backup data that is substantially duplicative of data that is more accessible elsewhere; and 6 Other forms of ESI whose preservation requires extraordinary affirmative measures that are not utilized in the ordinary course of business (id.). However, the federal courts may still order the discovery of data from these sources in an appropriate case (see Victor Stanley, Inc. v. Creative Pipe, Inc. 269 FRD 497, 524 [D Md. 2010]["[t]he general duty to preserve may also include deleted data, data in slack spaces, backup tapes, legacy systems, and metadata."]); Columbia Pictures, Inc. v. Bunnell, 245 FRD 443 [CD Cal. 2007] [ordering production of server log data]). We also note Judge Scheindlin's groundbreaking decision in Zubulake v UBS Warburg, LLC, 217 FRD 309, 316 [SDNY 2003] [in developing framework for cost/benefit analysis, court noted that discovery obligations apply not only to "electronic documents that are currently in use, but also [to] documents that may have been deleted and now reside only on backup disks."]).

Based on the specific facts of this case, we find that the Nassau Guidelines provide a practical approach. To exempt inaccessible data presumptively from discovery might encourage quick deletion as a matter of corporate policy, well before the spectre of litigation is on the  horizon and the duty to preserve it attaches. A cost/benefit analysis, as the Nassau Guidelines provide, does not encourage data destruction because discovery could take place regardless. Moreover, similar to rule 26(b)(2)(C)(iii), the approach of the Nassau Guidelines, has the benefit of giving the court flexibility to determine literally whether the discovery is worth the cost and effort of retrieval.

Here, plaintiff has variously described the information it seeks as stored in a "cache" file, as "unallocated" data or somewhere in backup data. Data from these sources is difficult to access. But, plaintiff's only chance to confirm the identity of the person who allegedly defamed her may lie with NYU. Thus, plaintiff has demonstrated "good cause" (see Fed Rules Civ Pro rule 45[d][1][D]) necessitating a cost/benefit analysis to determine whether the needs of the case warrant retrieval of the data.

However, the record is insufficient to permit this court to undertake a cost/benefit analysis. Accordingly, we remand to Supreme Court for a hearing to determine at least: (1) whether the identifying information was written over, as NYU maintains, or whether it is somewhere else, such as in unallocated space as a text file; (2) whether the retrieval software plaintiff suggested can actually obtain the data; (3) whether the data will identify actual persons who used the internet on April 12, 2009 via the IP address plaintiff identified; (4) which of those persons accessed Vitals.com and (5) a budget for the cost of the data retrieval, including line item(s) correlating the cost to NYU for the disruption [FN5]. Some of these questions (particularly [1] and [2]) may involve credibility determinations. Until the court has this minimum information, it cannot assess "the burden and expense of recovering and producing the ESI and the relative need for the data" (Nassau Guidelines) and concomitantly whether the data is so "inaccessible" that NYU does not have the ability to comply with the subpoena. That NYU is a nonparty should also figure into the equation (see Whitlow 263 FRD at 512). Of course in the event the data is retrievable without undue burden or cost, the court should give NYU a reasonable time to comply with the subpoena.

Further, it is worth mentioning that CPLR 3111 and 3122(d) require the requesting party to defray the "reasonable production expenses" of a nonparty. Accordingly, if the court finds after the hearing that NYU has the ability to produce the data, the court should allocate the costs of this production to plaintiff and should consider whether to include in that allocation the cost of disruption to NYU's normal business operations. In this latter consideration, the court should also take into account that plaintiff waited one year before sending the subpoena and preservation letter.

The court also erred in transferring the case to Civil Court. Although the complaint seeks damages, it also seeks equitable relief that is not within the jurisdiction of Civil Court (see CPLR 325[d]; W.H.P. 20 v Oktagon Corp., 251 AD2d 58, 59 [1998]).

Accordingly the order of the Supreme Court, New York County (Doris Ling-Cohan, J.),  entered September 14, 2010, that denied plaintiff's motion to hold nonparty NYU in contempt for failing to comply with a judicial subpoena, should be reversed, on the law, without costs, and the matter remanded to Supreme Court for a hearing on whether the information plaintiff seeks is "inaccessible" and hence whether NYU has the ability to comply with the subpoena. The order of the same court and Justice, entered September 24, 2010, that sua sponte transferred the action to the Civil Court pursuant to CPLR 325(d), should be reversed, on the law, without costs, and the order of transfer vacated.

Hoi Wah Lai v Mack, 2011 NY Slip Op 08563 (2nd Dept., 2011)

The Supreme Court improvidently exercised its discretion in granting the plaintiffs' motion pursuant to CPLR 3126 to strike the appellants' answer. A court may strike an answer as a sanction if a defendant "refuses to obey an order for disclosure or wilfully fails to disclose information which the court finds ought to have been disclosed" (CPLR 3126; see Thompson v Dallas BBQ, 84 AD3d 1221; Mazza v Seneca, 72 AD3d 754). However, the drastic remedy of striking an answer is inappropriate absent a clear showing that the defendant's failure to comply with discovery demands was willful or contumacious (see Polsky v Tuckman, 85 AD3d 750; Moray v City  of Yonkers, 76 AD3d 618; Pirro Group, LLC v One Point St., Inc., 71 AD3d 654; Dank v Sears Holding Mgt. Corp., 69 AD3d 557). Here, the plaintiffs failed to make such a showing. At the time the plaintiffs moved to strike the appellants' answer, the action had been pending for less than five months, the appellants had not missed any court-ordered deadlines, and, in fact, the appellants had already served a response to the plaintiffs' notice to produce (see Palomba v Schindler El. Corp., 74 AD3d 1037, 1038). In addition, the motion was not supported by an affirmation of good faith, as required by 22 NYCRR 202.7 (see Quiroz v Beitia, 68 AD3d 957, 960; Dennis v City of New York, 304 AD2d 611, 613).

Ferguson v Hess Corp., 2011 NY Slip Op 08478 (1st Dept., 2011)

Supreme Court providently exercised its discretion in vacating plaintiff's default and restoring the action to the calendar. The action has merit, plaintiff has substantially complied with discovery and retained new counsel, and there is a strong public policy favoring resolution of cases on the merits (Chevalier v 368 E. 148th St. Assoc., LLC, 80 AD3d 411, 413-414 [2011]). In view of the foregoing, we need not reach defendants' argument regarding plaintiff's motion to renew.

Hearsay (4518)

CPLR R. 4518 Business records

Steinberg v New York City Tr. Auth., 2011 NY Slip Op 07480 (1st Dept., 2011)

Supreme Court correctly found that, as movant, defendant failed to show that it did not breach a duty to plaintiff. Defendant relied on hearsay testimony and accident reports submitted without an adequate foundation for their admission as business records (see Wen Ying Ji v Rockrose Dev. Corp., 34 AD3d 253, 254 [2006]; compare Buckley v J.A. Jones/GMO, 38 AD3d 461, 462-463 [2007]). In view of the testimony of defendant's foreman that it was necessary to safeguard the tools from theft and that defendant's other employees had seen Williams hovering around them, talking and yelling, it cannot be found as a matter of law that Williams's criminal acts were unforeseeable and therefore a superseding cause of plaintiff's injuries (see Bell v Board of Educ. of City of N.Y., 90 NY2d 944 [1997])

Mallen v Farmingdale Lanes, LLC, 2011 NY Slip Op 08569 (2nd Dept., 2011)

In opposition, the plaintiff failed to raise a triable issue of fact. The plaintiff's expert affidavit was speculative and conclusory and, therefore, insufficient to raise a triable issue of fact (see Fotiatis v Cambridge Hall Tenants Corp., 70 AD3d 631, 632; Pappas v Cherry Cr., Inc., 66 AD3d 658, 659; Rivas-Chirino v Wildlife Conservation Socy., 64 AD3d 556, 558). Further, the plaintiff's contention that incident reports regarding prior accidents raised a triable issue of fact as to whether there was a dangerous condition or whether the defendant had notice of any such condition is speculative, as there was no evidence that those accidents were similar in nature to the plaintiff's accident (see Hyde v County of Rensselaer, 51 NY2d 927, 929; Gjonaj v Otis El. Co., 38 AD3d 384, 385). The plaintiff's reliance upon a statement as to the cause of her accident contained in an incident report is also unavailing, as the report contained hearsay and the plaintiff failed to lay the proper foundation for its admission as a business record (see CPLR 4518[a]; Roldan v New York Univ., 81 AD3d 625, 627; Stock v Otis El. Co., 52 AD3d 816, 817; Daliendo v Johnson, 147 AD2d 312, 321). "Although hearsay evidence may be considered in opposition to a motion for summary judgment, it is insufficient to bar summary judgment if it is the only evidence submitted" (Stock v Otis El. Co., 52 AD3d at 816-817 [internal quotation marks omitted]). Accordingly, since the hearsay evidence, by itself, was insufficient to raise a triable issue of fact, and the other evidence submitted by the plaintiff in opposition to the defendant's motion also failed to raise a triable issue of fact, the Supreme Court properly granted the defendant's motion for summary judgment dismissing the complaint.

Yant v Mile Sq. Transp., Inc., 2011 NY Slip Op 07913 (1st Dept., 2011)

Plaintiff established his entitlement to judgment as a matter of law by stating that he was injured when defendants' school bus hit the rear of the bus on which he was riding (see Johnson v Phillips, 261 AD2d 269, 271 [1999]). In opposition, defendants raised a triable issue of fact by attaching the complete police accident report, which listed all of the passengers on the buses and did not include plaintiff's name. This document, which was admissible as a business record (see Holliday v Hudson Armored Car & Courier Serv., 301 AD2d 392, 396 [2003], lv dismissed in part, denied in part 100 NY2d 636 [2003]), raised the question of whether plaintiff was actually a passenger on the bus (see Perry v City of New York, 44 AD3d 311 [2007]). Accordingly, plaintiff's motion should have been denied and defendants should have been permitted to conduct discovery to determine whether or not plaintiff was indeed a passenger (see CPLR 3212[f]; Bartee v D & S Fire Protection Corp., 79 AD3d 508 [2010]).

More than one 3212 = no. And other stuff. And “a reasonable opportunity to conduct discovery”

Courthouse Corporate Ctr., LLC v Schulman, 2011 NY Slip Op 07801 (2nd Dept., 2011)

The defendants' motion for summary judgment dismissing the third cause of action was based on matters that could have been, but were not, raised in the defendants' prior motion for summary judgment. Multiple motions for summary judgment in the same action should be discouraged in the absence of a showing of newly-discovered evidence or other sufficient cause (see NYP Holdings, Inc. v McClier Corp., 83 AD3d 426, 427; Flomenhaft v Fine Arts Museum of Long Is., 255 AD2d 290; Dillon v Dean, 170 AD2d 574). Accordingly, the Supreme Court correctly denied the defendants' motion.

Mintz & Gold, LLP v Zimmerman, 2011 NY Slip Op 08490 (1st Dept., 2011)

This was defendants' second motion for summary judgment. The motion court should have denied it on that basis, as defendants did not present sufficient cause for their successive motions (see NYP Holdings, Inc. v McClier Corp., 83 AD3d 426 [2011]). Even were we to reach the merits we would affirm because plaintiff was not required to plead special damages to set forth its claim under Civil Rights Law § 70, (see Civil Rights Law § 71).

Rubistello v Bartolini Landscaping, Inc., 2011 NY Slip Op 06483 (2nd Dept., 2011)

On its motion for summary judgment, the defendant bore the burden of " affirmatively demonstrat[ing] the merit of its claim or defense'" (Doe v Orange-Ulster Bd. of Coop. Educ. Servs., 4 AD3d 387, 389, quoting George Larkin Trucking Co. v Lisbon Tire Mart, 185 AD2d 614, 615) that it did not launch a force or instrument of harm as a result of a failure to exercise reasonable care in the performance of snow removal services. The defendant could not satisfy its burden by pointing to gaps in the plaintiff's proof (see Doe v Orange-Ulster Bd. of Coop. Educ. Servs., 4 AD3d at 388-389; George Larkin Trucking Co. v Lisbon Tire Mart, 185 AD2d at 615). Having failed to come forward with evidence to negate this Espinal exception, the defendant failed to establish its prima facie entitlement to judgment as a matter of law on this issue, and the Supreme Court properly denied its motion.

Bank of Am., N.A. v Hillside Cycles, Inc., 2011 NY Slip Op 07788 (2nd Dept., 2011)

A party should be afforded a reasonable opportunity to conduct discovery prior to the determination of a motion for summary judgment (see Venables v Sagona, 46 AD3d 672, 673; Amico v Melville Volunteer Fire Co., Inc., 39 AD3d 784, 785; Betz v N.Y.C. Premier Props., Inc., 38 AD3d 815; cf. McFadyen Consulting Group, Inc. v Puritan's Pride, Inc., 87 AD3d 620). Here, contrary to the plaintiff's contention, the Supreme Court did not improvidently exercise its discretion in denying, as premature, that branch of its motion which was for summary judgment on the complaint,  inasmuch as discovery may result in disclosure of evidence relevant to the causes of action asserted in the complaint (see CPLR 3212[f]; Bond v DeMasco, 84 AD3d 1292, 1293; Aurora Loan Servs., LLC v LaMattina & Assoc., Inc., 59 AD3d 578; Betz v N.Y.C. Premier Props., Inc., 38 AD3d at 815). The Supreme Court erred, however, in denying, as premature, those branches of the plaintiff's motion which were for summary judgment dismissing the defendant's first, second, third, and twelfth affirmative defenses, and, in effect, that branch of the motion which was for summary judgment dismissing the sixth affirmative defense. The plaintiff established its entitlement to judgment as a matter of law by showing that those defenses were either inapplicable to this breach of contract action or without merit, and that discovery could not result in disclosure of evidence relevant to those affirmative defenses (see Castrol, Inc. v Parm Trading Co. of N.Y.C., 228 AD2d 633, 634). In opposition, the defendant failed to raise a triable issue of fact (see St. Clare Dev. Corp. v Porges, 70 AD3d 925; cf. Family-Friendly Media, Inc. v Recorder Tel. Network, 74 AD3d 738, 739; Tornheim v Blue & White Food Prods. Corp., 73 AD3d 747, 749).

 Robiou v City of New York, 2011 NY Slip Op 08461 (1st Dept., 2009)

The motion court did not improvidently exercise its discretion in denying plaintiff's cross motion to strike defendant's answer (see Talansky v Schulman, 2 AD3d 355, 361-62 [2003]; Gross v Edmer Sanitary Supply Co., 201 AD2d 390, 391 [1994]). Moreover, we agree with the motion court's conclusion that further discovery could not lead to "facts essential to justify opposition" (CPLR 3212[f]), warranting a denial of defendant's summary judgment motion (see Auerbach v Bennett, 47 NY2d 619, 636 [1979]; Banque Nationale de Paris v 1567 Broadway

Estoppels abound

Maybaum v Maybaum, 2011 NY Slip Op 07816 (2nd Dept., 3011)

The Supreme Court erred in granting that branch of the plaintiff's motion which was to strike stated paragraphs of the defendant's counterclaim on the grounds of res judicata, collateral estoppel, and equitable estoppel. The allegations in the defendant's counterclaim for a divorce on the ground of cruel and inhuman treatment, and the allegations in the plaintiff's family offense petition, did not arise out of the same transaction or series of transactions. "It is not always clear whether particular claims are part of the same transaction for res judicata purposes. A pragmatic' test has been applied to make this determination—analyzing whether the facts are related in time, space, origin, or motivation, whether they form a convenient trial unit, and whether their treatment as a unit conforms to the parties' expectations or business understanding or usage'" (Xiao Yang Chen v Fischer, 6 NY3d 94, 100-101, quoting Restatement [Second] of Judgments § 24[2]; see Smith v Russell Sage Coll., 54 NY2d 185, 192-193). Applying this test, we conclude that the family offense petition and counterclaim for a divorce on the ground of cruel and inhuman treatment do not form a convenient trial unit. Thus, the defendant is not precluded from litigating her counterclaim for a divorce on the ground of cruel and inhuman treatment in the separate action in the Supreme Court. 

"Collateral estoppel, or issue preclusion, precludes a party from relitigating in a subsequent action or proceeding an issue clearly raised in a prior action or proceeding and decided against that party . . . , whether or not the tribunals or causes of action are the same'" (Parker v Blauvelt Volunteer Fire Co., 93 NY2d 343, 349, quoting Ryan v New York Tel. Co., 62 NY2d 494, 500). "The doctrine applies if the issue in the second action is identical to an issue which was raised, necessarily decided and material in the first action, and the plaintiff had a full and fair opportunity to litigate the issue in the earlier action" (Parker v Blauvelt Volunteer Fire Co., 93 NY2d at 349). "[C]ollateral estoppel effect will only be given to matters actually litigated and determined in a prior action" (Kaufman v Eli Lilly & Co., 65 NY2d 449, 456 [internal quotation marks omitted]). "An issue is not actually litigated if, for example, there has been a default, a confession of liability, a failure to place a matter in issue by proper pleading or even because of a stipulation" (id. at 456-457). Here, the issue of whether the plaintiff committed certain acts against the defendant was never determined in the Family Court proceeding, and the defendant's participation in the stipulation to withdraw her family offense petition, with prejudice, cannot be construed to be the kind of determination following a full and fair opportunity to litigate the issues that would be necessary to collaterally estop the defendant from establishing that the plaintiff committed the alleged acts (see North Shore-Long Is. Jewish Health Sys., Inc. v Aetna US Healthcare, Inc., 27 AD3d 439, 440-441; Singleton Mgt. v Compere, 243 AD2d 213, 216-218).

Further, "[t]he circumstances set forth by plaintiff simply do not rise to a level of unconscionability warranting application of equitable estoppel" (American Bartenders School v 105 Madison Co., 59 NY2d 716, 718; see Geller v Reuben Gittelman Hebrew Day School, 34 AD3d 730, 731-732).

Since the doctrines of res judicata, collateral estoppel, and equitable estoppel do not preclude the defendant from litigating certain of the allegations in her counterclaim that were alleged in her family offense petition, the Supreme Court should have granted that branch of the defendant's cross motion which was pursuant to CPLR 3211(b) to dismiss the plaintiff's fourth affirmative defense alleging that the defendant's counterclaim was barred in whole or in part by the doctrines of res judicata, collateral estoppel, and equitable estoppel, as that defense has no merit.

The Supreme Court further erred in granting that branch of the plaintiff's motion which was to strike stated paragraphs of the defendant's counterclaim, in effect, as time-barred on the ground they alleged acts occurring more than five years prior to the commencement of the action. The allegations in the counterclaim relating to incidents occurring more than five years before the commencement of the action may be properly included to the extent that those allegations may be relevant to an evaluation of a party's claim for a divorce on the ground of cruel and inhuman treatment in the context of the entire marriage (see Vestal v Vestal, 273 AD2d 461, 462; Miglio v Miglio, 147 AD2d 460, 460-461). Further, the Supreme Court erred in granting that branch of the plaintiff's motion which was pursuant to CPLR 3016(c) to strike stated paragraphs in the counterclaim for lack of specificity and thereupon directing the defendant to serve and file an amended counterclaim. The "allegations sufficiently apprised the [plaintiff] of the accusations against him so as to enable him to prepare a defense" (Nolletti v Nolletti, 2 AD3d 421, 422; see Kapchan v Kapchan, 104 AD2d 358; Pfeil v Pfeil, 100 AD2d 725). Therefore, the Supreme Court also should have granted that branch of the defendant's cross motion which was pursuant to CPLR 3211(b) to dismiss the plaintiff's third affirmative defense alleging that the counterclaim was insufficiently specific to meet the requirements of CPLR 3016(c).

Farren v Lisogorsky, 2011 NY Slip Op 06366 (2nd Dept., 2011)

Prior to answering, the defendant moved to dismiss the complaint pursuant to CPLR 3211(a)(5) and (7), for summary judgment dismissing the complaint, and for an award of sanctions. The Supreme Court, inter alia, granted that branch of the motion which was to dismiss the complaint pursuant to CPLR 3211(a)(5), holding that the doctrine of res judicata precluded the instant action. We reverse the order insofar as appealed from. 

" [T]he general doctrine of res judicata gives binding effect to the judgment of a court of competent jurisdiction and prevents the parties to an action, and those in privity with them, from subsequently relitigating any questions that were necessarily decided therein'" (Landau, P.C. v LaRossa, Mitchell, & Ross, 11 NY3d 8, 13, quoting Matter of Grainger [Shea Enters.], 309 NY 605, 616). Although the doctrine of res judicata may be invoked where there is either a final judgment in an action between the parties, or a stipulation of settlement withdrawing a complaint or cause of action with prejudice (see Liberty Assoc. v Etkin, 69 AD3d 681, 682-683), to establish "privity" of the kind required for the application of res judicata, the party raising a res judicata defense must demonstrate a connection between the party to be precluded and a party to the prior action "such that the interests of the nonparty can be said to have been represented in the prior proceeding" (Green v Santa Fe Indus., 70 NY2d 244, 253).

The doctrine of res judicata is inapplicable to the instant action, as the plaintiffs never asserted any claim against the defendant in his capacity as an employee of Metropolitan, and seek here to hold him liable solely in his professional capacity as a pharmacist (see City of New York v Welsbach Elec. Corp., 9 NY3d 124, 127-128; Pawling Lake Prop. Owners Assn., Inc. v Greiner, 72 AD3d 665). The fact that the plaintiffs sued one tortfeasor, Metropolitan, does not automatically preclude them from suing another tortfeasor, such as the defendant herein, in a subsequent action (see Seaman v Fichet-Bauche N. Am., 176 AD2d 793, 794). In addition, the defendant inaptly sought to invoke res judicata against the plaintiffs based on his alleged privity with Metropolitan. Since there was an insufficient basis upon which to conclude that the defendant was in privity with Metropolitan, the Supreme Court incorrectly granted that branch of the defendant's motion which was pursuant to CPLR 3211(a)(5) to dismiss the complaint based on the doctrine of res judicata.

Uzamere v Senator Ehigie Edobor Uzamere, 2011 NY Slip Op 08583 (2nd Dept., 2011)

The Supreme Court properly directed dismissal of the complaint based on the doctrine of res judicata. The plaintiff previously commenced two prior federal court actions, one in the Eastern District of New York (hereinafter the Eastern District action) and one in the Southern District of New York based on the same alleged facts that form the basis of the complaint herein. In light of authority stating that a court should apply the rules of res judicata followed in the jurisdiction that rendered the earlier court decision (see Insurance Co. of State of Pa. v HSBC Bank USA, 10 NY3d 32, 38 n 3, citing Marrese v American Academy of Orthopaedic Surgeons, 470 US 373, 380-381; Langerman v Langerman, 303 NY 465, 474; Restatement [Second] of Conflict of Laws § 95, Comment[e]), we apply federal res judicata law in determining whether the doctrine of res judicata bars this action.

"In federal court, subsequent litigation is prohibited if a prior court ruling was (1) a final judgment on the merits, (2) by a court of competent jurisdiction, (3) in a case involving the same parties or their privies, and (4) involving the same cause of action'" (Insurance Co. of State of Pa. v HSBC Bank USA, 10 NY3d at 37, quoting EDP Med. Computer Sys., Inc. v United States, 480 F3d 621, 624).

Here, the Eastern District action resulted in a dismissal of the complaint for failure to state a claim upon which relief could be granted, and that dismissal was a final adjudication on the merits by a court of competent jurisdiction (see Federated Department Stores, Inc. v Moitie, 452 US 394, 399 n 3; Angel v Bullington, 330 US 183, 190). Furthermore, the Eastern District action and this action involve the same parties or their privies (see Akhenaten v Najee, LLC, 544 F Supp 2d 320, 328-329), and involve the same cause of action. Specifically, the Eastern District complaint and the instant complaint arise out of the same "nucleus of operative facts" and, thus, the causes of action asserted in this litigation could have been asserted in the Eastern District action (Waldman v Village of Kiryas Joel, 207 F3d 105, 108). Moreover, under the circumstances of this case, it is not clear that the Eastern District would have, as a matter of discretion, declined to exercise supplemental jurisdiction over the State law causes of action asserted herein (see Troy v Goord, 300 AD2d 1086; cf. McLearn v Cowen & Co., 48 NY2d 696, 698; Urlic v Insurance Co. of State of Penn., 259 AD2d 1, 4).

Punitive

Felton v Tourtoulis, 2011 NY Slip Op 06472 (2nd Dept., 2011)

The Supreme Court improperly granted that branch of the defendants' motion which was pursuant to CPLR 3211(a)(7) to dismiss the plaintiff's demand for punitive damages insofar as asserted against the defendant driver. "Punitive damages are available to vindicate a public right only where the actions of the alleged tortfeasor constitute either gross recklessness or intentional, wanton, or malicious conduct aimed at the public generally, or were activated by evil or reprehensible motives" (Boykin v Mora, 274 AD2d 441, 442). At this stage of the litigation, it is premature to conclude that the allegations in the complaint are insufficient to support a claim that the defendant driver acted so recklessly or wantonly as to warrant an award of punitive damages (see Wilner v Allstate Ins. Co., 71 AD3d 155, 167). Accordingly, the Supreme Court should have denied that branch of the defendants' motion which was pursuant to CPLR 3211(a)(7) to dismiss the plaintiff's demand for punitive damages insofar as asserted against the defendant driver.

Expertly Fryed and a little precluded

Matter of Bausch & Lomb Contact Lens Solution Prod. Liab. Litig., 2011 NY Slip Op 06460 (1st Dept., 2011)

Plaintiffs failed to meet their burden of showing at the Frye hearing (Frye v United States, 293 F 1013 [1923]) that their experts' opinions that defendant's soft contact lens solution ReNu with MoistureLoc (Renu ML) was causally related to a rise in non-Fusarium corneal infections were generally accepted by the relevant medical or scientific community (see Pauling v Orentreich Med. Group., 14 AD3d 357 [2005], lv denied 4 NY3d 710 [2005]; Lara v New York City Health & Hosps. Corp., 305 AD2d 106 [2003]; see also Marso v Novak, 42 AD3d 377 [2007], lv denied 12 NY3d 704 [2009]). They submitted no "controlled studies, clinical data, medical literature, peer review or supporting proof" of their theory (Saulpaugh v Krafte, 5 AD3d 934, 936 [2004], lv denied 3 NY3d 610 [2004]; Lara, 305 AD2d at 106).

Plaintiffs' experts contended that testing showed a reduced biocidal efficacy of ReNu ML under certain conditions. The experts then extrapolated from those results the conclusion that ReNu ML increased the risk of non-Fusarium infections. However, one of the experts stated in a published article that "contamination is not consistently correlated with a higher rate of microbial keratitis" (Levey and Cohen, Methods of Disinfecting Contact Lenses to Avoid Corneal Disorders, Survey of Ophthalmology, Vol. 41, No. 3, at 296 [1996]). In addition, from a certain study in which a film was found to protect Fusarium, plaintiffs' experts concluded that the film similarly would protect other microorganisms. However, plaintiffs' microbiologist conceded that different types of microorganisms have different needs and respond  differently to different conditions.

Moreover, despite four studies conducted on keratitis infections during the relevant period, plaintiffs introduced no epidemiological evidence of a rise in non-Fusarium infections. The court properly excluded plaintiffs' epidemiologist from explaining this lack of an epidemiological signal, because the testimony had not been previously disclosed by plaintiffs and would have surprised defendant. Additionally, plaintiffs failed to demonstrate good cause for their failure to disclose the testimony (see CPLR 3101[d]; LaFurge v Cohen, 61 AD3d 426 [2009], lv denied 13 NY3d 701 [2009]; Peguero v 601 Realty Corp., 58 AD3d 556, 564 [2009]).

The court properly quashed plaintiffs' subpoena of defendant's expert and former chief medical officer, because the expert had been deposed on three occasions, and plaintiffs failed to articulate any legitimate need for his live testimony (see Pena v New York City Tr. Auth., 48 AD3d 309 [2008]).

Nonnon v City of New York, 2011 NY Slip Op 06463 (1st Dept., 2011)

The Frye test is not concerned with the reliability of a particular expert's conclusions, but rather, with "whether the expert['s] deductions are based on principles that are sufficiently established to have gained general acceptance as reliable" (Nonnon I, 32 AD3d at 103 [internal quotation marks omitted]). General acceptance does not necessarily mean that a majority of the scientists involved subscribe to the conclusion, but that those espousing the theory or opinion have followed generally accepted scientific principles and methodology in reaching their conclusions.

***

Thus, so long as plaintiffs' experts have provided a "scientific expression" of plaintiff's exposure levels, they will have laid an adequate foundation for their opinions on specific causation (Jackson, 43 AD3d at 602 [internal quotation marks omitted]). For example, in Jackson, the court found that the plaintiffs' expert had laid a sufficient foundation for his opinion on causation where, inter alia, the expert was directly involved in the investigation of the potential health consequences of the underlying incident; co-authored a report based on the investigation and research that had been published in a peer-reviewed medical journal, comparing the facts of the incident to those recorded in other studies; and opined that the manner in which DEAE had been fed into the steam system prior to the leak caused concentrated levels of the toxin to be released and that plaintiffs' symptoms were caused by DEAE exposure in a building.

Salman v Rosario, 2011 NY Slip Op 06323 (1st Dept., 2011)

Most important, plaintiff's orthopedic surgeon, Dr. Ehrlich, who performed arthroscopic surgery on plaintiff's knee only four months after the accident, opined that "to a reasonable degree of medical certainty, the motor vehicle accident of 11/28/05 is the proximate cause of her condition, and not from a pre-existing or long standing degenerative process." Plaintiff's surgeon based this conclusion on his observations of plaintiff's knee during surgery (documented in the operative report plaintiff submitted on the original motion) and because plaintiff's MRI films (plaintiff submitted the MRI report on the original motion) did not depict the existence of osteophytes, show evidence of spondylosis or show other symptoms of degenerative processes. Thus, plaintiff's surgeon countered defendant's orthopedist's observation that plaintiff's injuries had no traumatic basis. Plaintiff's surgeon also documented range-of-motion limitations in the knee. Dr. Mian, who also conducted an orthopedic examination in 2008 and found deficits in plaintiff's range of motion, opined that the right knee tear was causally related to the accident. Thus, the evidence more than amply raised an issue of fact as to whether plaintiff had sustained a "serious injury" of a permanent nature to the right knee within the meaning of Insurance Law Section 5102(d).

Plaintiff's objective evidence of injury, four months post-accident, was sufficiently contemporaneous to establish that plaintiff had suffered a serious injury within the meaning of the statute. Dr. Ehrlich based his conclusions in large part on his actual observations of plaintiff's knee during the surgery he performed. This conclusion is significant because the doctor was able to see exactly what the injuries were. Moreover, in her affidavit, plaintiff stated that, prior to surgery, she had physical therapy five times a week for three months. It is not unreasonable to try to resolve an injury with physical therapy before resorting to surgery. The circumstances, i.e., plaintiff's initial medical exam that was close in time to the accident, her intensive physical therapy, her young age and eventual surgery, make the four months between the accident and plaintiff's objective medical evidence sufficiently contemporanous to withstand a motion for summary judgment (see Gonzalez v Vasquez, 301 AD2d 438 [2003] [examining physician's affirmation correlating motorist's neck and back pain two years after rear-end collision to quantified range of motion limitations found on physical examination and bulging and herniated discs described in MRI reports, and opining that motorist's symptoms were permanent, raised genuine issue of material fact as to whether motorist suffered serious injury]; see also Rosario v Universal Truck & Trailer Serv., 7 AD3d 306, 309 [2004]).

However, defendants did establish, prima facie, that plaintiff did not suffer a 90/180-day injury, and plaintiff failed to raise a triable issue of fact, given her testimony that she was out of work for only three days (see Pou v E & S Wholesale Meats, Inc., 68 AD3d 446, 447 [2009]).

All concur except Román, J. who dissents in a memorandum as follows:

ROMÁN, J. (dissenting)

To the extent that the majority concludes that renewal of the motion court's order granting summary judgment in favor of Kanate was warranted, and that upon renewal Garcia's evidence precluded summary judgment, I dissent. Here, renewal would only have been warranted in the interest of justice, and to the extent that Garcia's evidentiary submission on renewal failed to establish any injury contemporaneous with her accident, renewal should have been denied.

To the extent that Garcia submitted medical evidence failing to establish treatment earlier than January 25, 2006, two months after this accident, Garcia failed to raise a triable issue of fact as to whether she sustained a serious injury because she failed to submit competent and admissible medical evidence of injury contemporaneous with her accident (see Ortega v Maldonado, 38 AD3d 388, 388 [2007]; Toulson v Young Han Pae, 13 AD3d 317, 319 [2004]; Alicea v Troy Trans, Inc., 60 AD3d 521, 522 [2009]; Migliaccio v Miruku, 56 AD3d 393, 394 [2008]). Accordingly, the motion court properly granted Kanate's initial motion for summary judgment with respect to all categories of injury under Insurance Law § 5102.

On her motion to renew, seeking to remedy shortcomings in her prior submission, Garcia tendered, inter alia, medical records, not previously submitted, purportedly evincing medical treatment contemporaneous with her accident. Specifically and to the extent relevant here, on renewal Garcia submitted records evincing a medical examination occurring a month after her accident. Nothing submitted competently evinced medical treatment at anytime prior thereto. A motion to renew "must be based upon additional material facts which existed at the time the prior motion was made, but were not then known to the party seeking leave to renew, and, therefore, not made known to the court" (Foley v Roche, 68 AD2d 558, 568 [1979]). However, when the proponent of renewal seeks to proffer new evidence of which he/she was previously aware but did not provide to the court on a prior motion, renewal may be granted if the interest of justice so dictate (Tishman Constr. Corp. of N.Y. v City of New York, 280 AD2d 374, 376-377 [2001]; Mejia v Nanni, 307 AD2d 870, 871 [2003]). Generally, the interest of justice require renewal when the newly submitted evidence changes the outcome of the prior motion. Here, Garcia sought renewal in order to have the motion court consider evidence previously known to her. Accordingly, renewal would have only been warranted if it served the interest of justice. At best, Garcia's medical evidence of injury on renewal established medical treatment beginning no sooner than a month after her accident. A medical examination occurring a month after an accident is not contemporaneous. Given its plain and ordinary meaning, contemporaneous means "existing, happening in the same period of time" (Webster's New World Dictionary 300 [3rd college ed 2004]). Accordingly, insofar as Garcia's evidence on renewal did not evince medical treatment contemporaneous with the accident, renewal in the interest of justice should have been denied.

The majority takes the untenable position that not only is Garcia's medical examination, occurring a month after the accident, contemporaneous with her accident, but paradoxically that the report of her surgeon, who did not see plaintiff for the first time until four months after her accident, is sufficient to establish the causal link between Garcia's knee injury and her accident such that she raised an issue of fact precluding summary judgment in Kanate's favor. First, if a medical examination occurring one month after an accident is not contemporaneous, then an examination occurring four months after an accident is certainly less so (Mancini v Lali NY, Inc., 77 AD3d 797, 798 [2010] [medical findings made by plaintiff's doctor four months after his accident not sufficiently contemporaneous with the accident to establish a serious injury]); Resek v Morreale, 74 AD3d 1043, 1044-145 [2010] [medical findings made by plaintiff's doctor five months after his accident not sufficiently contemporaneous with the accident to establish a serious injury]). Moreover, even if we assume that this report was temporally contemporaneous with her accident, it was nevertheless bereft of any objective, qualitative, or quantitative evidence of injury to her knee (Blackmon v Dinstuhl, 27 AD3d 241, 242 [2006]; Thompson v Abassi, 15 AD3d 95, 98 [2005]). Second, contrary to the majority's assertion, the report of Garcia's orthopedist might have been probative as to her knee injury on the date he performed surgery, but standing alone, his observations on that date could not have been probative as to whether that injury was caused by this accident (see Pommells v Perez, 4 AD3d 101, 101-102 [2004], affd 4 NY3d 566 [2005] [medical opinion as to causation is speculative when the record is bereft of any evidence establishing contemporaneous medical treatment and the doctor proffering opinion sees plaintiff for the first time after a substantial period of time since the accident]; Vaughan v Baez, 305 AD2d 101, 101 (2003); Shinn v Catanzaro, 1 AD3d 195, 198-199 [2003]; Komar v Showers, 227 AD2d 135, 136 [1996]).

The majority relies on two cases in support of its holding, Gonzalez v Vasquez (301 AD2d 438 [2003]) and Rosario v Universal Truck & Trailer Serv., Inc. (7 AD3d 306 [2004]), neither of which bears on the issue of contemporaneous medical treatment and both of which, to the extent that they allow a doctor to establish causation upon an initial examination conducted a substantial time after an accident, are at odds with Vaughan, Shinn, Komar and Pommells.

***

Footnote 1:Although the records from Dr. Cordaro's office are unsworn, it is of no moment. The documents are properly certified as business records (see Mayblum v Schwarzbaum, 253 AD2d 380 [1998]; CPLR 4518[a]), and are referenced only to show plaintiff's complaints and the doctor's referral rather than a medical opinion about a causal relation to the accident.

Matter of New York City 5201-Asbestos Litig., 2011 NY Slip Op 06296 (1st Dept., 2011)

Colgate seeks to question Dr. Sanborn about a hobby allegedly involving asbestos that she mentioned in her consultation note on Karen Tedrick. Dr. Sanborn wrote that "[Tedrick's] father had some sort of hobby activity or other project in the family basement as the patient was growing up, which the patient's brother reports did involve having asbestos in the basement." Tedrick's brother, Richard Konopka, has already been deposed, however, and testified that this hobby referred to a chemistry set that he owned as a teenager. Because the information sought from Dr. Sanborn is available from another source, we agree with the motion court that Dr. Sanborn's deposition should not be compelled (see Ramsey v New York Univ. Hosp. Ctr., 14 AD3d 349 [2005]; CPLR 3101[a][3]; 3101[a][4]).

Lugo v New York City Health & Hosps. Corp., 2011 NY Slip Op 06475 (2nd Dept., 2011)

A running theme throughout the Frye hearing was whether the experts considered the medical literature they had reviewed to be "authoritative." Although both Dr. Katz and Dr. Peyster testified that they did not consider any of the literature they had discussed to be "authoritative," Dr. Katz testified that the Volpe textbook and the articles he had addressed were the sources he would consult for the current science in the areas discussed at the hearing. Dr. Peyster testified that he did not consider any medical literature, including his own book, to be "authoritative" because that term implied that everything in the article or study was correct and was not subject to any further changes. Dr. Peyster's reluctance to apply this label to medical literature was echoed by the defendant's expert Dr. Jahre, who agreed that this term was not used frequently to describe medical literature and that doctors relied upon articles not considered to be "authoritative" to assess the state of the science.

***

In addition, we disagree with the Supreme Court's conclusion that the theory of causation espoused by the plaintiffs' experts lacked an adequate foundation for admissibility. "The Frye inquiry is separate and distinct from the admissibility question applied to all evidence—whether there is a proper foundation—to determine whether the accepted methods were appropriately employed in a particular case" (Parker v Mobil Oil Corp., 7 NY3d 434, 447; see People v Wesley, 83 NY2d at 428-429; Jackson v Nutmeg Tech., Inc., 43 AD3d 599, 601). "The focus moves from the general reliability concerns of Frye to the specific reliability of the procedures followed to generate the evidence proffered and whether they establish a foundation for the reception of the evidence at trial" (People v Wesley, 83 NY2d at 429). "The foundation . . . should not include a determination of the court that such evidence is true. That function should be left to the jury" (id. at 425).

****

The Supreme Court's conclusion that the opinion of the plaintiffs' experts lacked an adequate foundation rested largely on its findings that the evidence presented at the Frye hearing established that perinatal ischemia or hypoxia is the overwhelming cause of PVL and that the testimony of the plaintiffs' experts did not eliminate other "more likely possible causes" of Lugo's PVL. In relying upon such reasoning, the Supreme Court, in effect, rendered an assessment as to the ultimate merit of the opinion testimony of the plaintiffs' experts (see People v Wesley, 83 NY2d at 425). Clearly, numerous factual disagreements between the parties' experts were highlighted at the Frye hearing, including, but not limited to, the specific appearance of Lugo's brain MRI abnormalities and their cause. However, these factual disagreements go to the weight to be accorded to the testimony of the plaintiffs' experts by the trier of fact, and not the admissibility of such testimony (see Jackson v Nutmeg Tech., Inc., 43 AD3d at 602).

 

Conflict of Laws

Rose v Arthur J. Gallagher & Co., 2011 NY Slip Op 06374 (2nd Dept., 2011)

This action arises from the alleged failure of the defendants, in their capacity as insurance brokers, to provide the plaintiffs with an accurate quote for the cost of certain insurance coverage. The third, fourth, and fifth causes of action in the amended complaint, which are at issue on this appeal, allege negligence, professional malpractice, and breach of fiduciary duty, respectively. The only issue disputed by the parties is whether the conduct alleged in those three causes of action is governed by Louisiana law or New York law.

The three causes of action in question sound in tort and, thus, contrary to the parties' contentions, the conflict-of-laws standard that applies in contract-based actions (see Zurich Ins. Co. v Shearson Lehman Hutton, 84 NY2d 309, 317-319) does not apply here. Since the laws alleged to be in conflict—including those regarding the availability of punitive damages, an important purpose of which is deterrence (see Ross v Louise Wise Servs., Inc., 8 NY3d 478, 489) — are of a conduct-regulating nature, the law of the place of the tort applies (see Padula v Lilarn Props. Corp., 84 NY2d 519; Cooney v Osgood Mach., 81 NY2d 66, 72; Schultz v Boy Scouts of Am., 65 NY2d 189, 198; Shaw v Carolina Coach, 82 AD3d 98, 101). In this case, the allegedly negligent quote was requested by the plaintiffs, and provided by the defendants, through e-mail communications that were sent from and received in New York. Thus, the tortious conduct alleged in the amended complaint is governed by New York law. Since the parties charted a procedural course in which the viability of the three causes of action in question depends upon whether they are governed by Louisiana law, the Supreme Court properly awarded the defendants summary judgment dismissing those causes of action.

Renewal Judgment and Bankruptcy

CPLR § 5014 Action upon judgment

CPLR § 5018 Docketing of judgment

CPLR § 5203 Priorities and liens upon real judgment

Nelson, L.P. v Jannace, 2011 NY Slip Op 06373 (2nd Dept., 2011)

In 2009 Nelson moved pursuant to CPLR 5014(1) for a renewal judgment, extending the lien on the defendants' real property for an additional 10 years. The defendants cross-moved pursuant to Debtor and Creditor Law § 150 to direct that a discharge of record be marked upon the docket of the judgment entered June 27, 2000, as amended January 25, 2001. The Supreme Court granted the motion and denied the cross motion. The defendants appeal.

Judgment was properly entered against Woods prior to her bankruptcy filing. Contrary to the defendants' contention, the amended judgment was properly entered after the Bankruptcy Court terminated ab initio the automatic bankruptcy stay of actions against Jannace and permitted entry of the judgment. The docketing of the money judgment, by operation of law, created a lien on the defendants' real property within the county (see CPLR 5018[a]; 5203; Gihon, LLC v 501 Second St., LLC, 29 AD3d 629). Since a lien is valid for 10 years (see CPLR 5203[a]), while a money judgment is viable for 20 years (see CPLR 211[b]), CPLR 5014 permits a judgment creditor to apply for a renewal of the judgment lien for an additional 10-year period (see Gletzer v Harris, 12 NY3d 468, 473). The Supreme Court properly granted Nelson's motion pursuant to CPLR 5014(1) for a renewal judgment, despite the defendants' discharge in bankruptcy.

"[A] discharge in bankruptcy is a discharge from personal liability only and, without more, does not have any effect on a judgment lien" (Matter of Acquisitions Plus, LLC v Shapiro, 7 AD3d 957, 958; 11 USC § 524[a][1]). Judgment liens and other secured interests ordinarily survive bankruptcy (see Carman v European Am. Bank & Trust Co., 78 NY2d 1066; McArdle v McGregor, 261 AD2d 591; Bank of N.Y. v Magri, 226 AD2d 412; see also Farrey v Sanderfoot, 500 US 291, 297). Moreover, a creditor need not object to the debtor's discharge in bankruptcy in order to preserve its lien, since the discharge does not affect the lien (see Carman v European Am. Bank & Trust Co., 78 NY2d 1066; McArdle v McGregor, 261 AD2d 591).

When the defendants received discharges in bankruptcy, their personal liability to the plaintiff on the judgment was discharged (see 11 USC § 524[a][1]). However, the defendants did not meet their burden of establishing that the liens on their real property were invalidated or surrendered in the bankruptcy proceedings or set aside in an action brought by the receiver or trustee. Accordingly, they were entitled only to a qualified discharge (see Debtor and Creditor Law § 150[4][b]; Carman v European Am. Bank & Trust Co., 78 NY2d 1066; Bank of N.Y. v Magri, 226 AD2d 412; Matter of Leonard v Brescia Lbr. Corp., 174 AD2d 621). "A qualified' discharge, as distinguished from an unqualified discharge, serves as notice to third parties that, notwithstanding the debtor-owner's discharge in bankruptcy, the property may, nonetheless, still be burdened by liens" (Carman v European Am. Bank & Trust Co., 78 NY2d at 1067).

A very invasive Defense IME

D'Adamo v Saint Dominic's Home, 2011 NY Slip Op 06469 (2nd Dept., 2011)

The plaintiff then moved to vacate the defendant's notice of physical examination pursuant to 22 NYCRR 202.17(a) or, in the alternative, for a protective order pursuant to CPLR 3103(6).

In opposition, the defendant argued that it was entitled to a physical examination of Herrera since his physical condition had been placed into controversy. Moreover, it contended that it would be placed at a disadvantage in defending itself in this action if it was deprived of the opportunity to conduct such an examination by a doctor of its choosing since the plaintiff alleged that Herrera would require a colostomy bag for the rest of his life, establishing the need for an examination by Dr. Gingold. In addition, it claimed that an examination was necessary given the plaintiff's allegations of surgical scarring and edema to all of Herrera's extremities as a result of the defendant's alleged negligence.

In her attorney's reply affirmation, the plaintiff agreed to produce Herrera for the physical examination in light of the defendant's willingness to pay all of the costs associated with transporting Herrera to and from Dr. Gingold's office, and any required supervision of Herrera for the physical examination. However, the plaintiff indicated that she would object to any invasive procedures such as a colonoscopy, any radiological studies, or the removal of Herrera's colostomy bag during Dr. Gingold's examination.

In an order dated November 16, 2010, the Supreme Court requested a sworn statement from Dr. Gingold detailing the procedures to be performed during the examination. The Supreme Court provided that the plaintiff would be allowed to respond.

Dr. Gingold submitted an affidavit in response to the Supreme Court's order, explaining that he intended to perform a rigid sigmoidoscopy. He contended that the procedure would "take a few minutes and [wa]s not dangerous or painful" and there had been no complications from "any straightforward sigmoidoscopies [he] ha[d] performed." He did not anticipate the use of anesthesia. In the event that Herrera's rectum had to be stretched digitally, Dr. Gingold stated that he would apply topical anesthesia. Dr. Gingold opined that, since Herrera had a limited amount of sigmoid and rectum remaining, it was unlikely that Herrera would feel any cramps following the procedure.

Dr. Gingold also intended to examine Herrera's abdomen and the colostomy bag to determine if any issues were present which would prevent reversal of the colostomy or resolution of the irritation in the vicinity of the colostomy as testified to by D'Adamo during her deposition.

In response, the plaintiff submitted an affirmation from Dr. Jeffrey Freed, who explained that a rigid sigmoidoscopy involves placing a rigid instrument in a person's rectum up to the sigmoid colon. He contended that "[a]s with any surgical procedure, there are risks and such a procedure can not be classified as being not dangerous,' as indicated by [Dr. Gingold]." He also stated that there was a risk of perforation to the remaining colon and rectum if there was any movement by Herrera, which was likely given Herrera's inability to comprehend or follow commands to remain still.

Dr. Gingold then submitted a supplemental affidavit in which he acknowledged that there was a chance Herrera would move during the procedure. Given that possibility, Dr. Gingold would first examine Herrera digitally and would only perform the rigid sigmoidoscopy, with a smaller pediatric sigmoidoscope and without sedation, if Herrera tolerated the digital examination. If Herrera did not tolerate the digital examination, Dr. Gingold could sedate Herrera intravenously during the procedure for a total of approximately two minutes.

Upon receiving the additional submissions, the Supreme Court, inter alia, denied the plaintiff's motion and directed Herrera to undergo the physical examination as noticed by the defendant and as outlined in the affidavits of Dr. Gingold. The plaintiff appeals.

With respect to the denial of that branch of the plaintiff's motion which was for a protective order, the Supreme Court improvidently exercised its discretion. While CPLR 3101(a) provides that "[t]here shall be full disclosure of all matter material and necessary in the prosecution . . . of an action," "the principle of full disclosure' does not give a party the right to uncontrolled and unfettered disclosure" (JFK Family Ltd. Partnership v Millbrae Natural Gas Dev. Fund 2005, L.P., 83 AD3d 899, 900; see Buxbaum v Castro, 82 AD3d 925, 925; Peluso v Red Rose Rest., Inc., 78 AD3d 802; Foster v Herbert Slepoy Corp., 74 AD3d 1139; Gilman & Ciocia, Inc. v Walsh, 45 AD3d 531).

When a particular discovery demand is inappropriate, the court may "make a protective order" with respect to that demand (CPLR 3103[a]). "Such order shall be designed to prevent unreasonable annoyance, expense, embarrassment, disadvantage, or other prejudice to any person" (id.).

Even though a defendant is entitled to thoroughly examine a plaintiff who puts his or her physical and/or mental condition in issue (see Louis v Cohen, 221 AD2d 509; Healy v Deepdale Gen. Hosp., 145 AD2d 413), a plaintiff may not be compelled to undergo objective testing procedures when it is established that the tests are invasive, painful and harmful to the person's health (see Rosario v BNS Bldgs., LLC, 67 AD3d 984; Santero v Kotwal, 4 AD3d 464, 465; Bobka v Mann, 308 AD2d 497, 498; Marino v Pena, 211 AD2d 668, 668-669; Lapera v Shafron, 159 AD2d 614).

Here, the plaintiff met her initial burden of showing that the procedures which Dr. Gingold intended to perform on Herrera were potentially harmful and clearly invasive (see Rosario v BNS Bldgs., LLC, 67 AD3d 984; Santero v Kotwal, 4 AD3d at 465; Bobka v Mann, 308 AD2d at 498; Marino v Pena, 211 AD2d at 668-669; Lefkowitz v Nassau County Med. Ctr., 94 AD2d 18, 21). In response, the defendant failed to establish that the intended procedures would not be harmful to Herrera (see Marino v Pena, 211 AD2d 668; Lefkowitz v Nassau County Med. Ctr., 94 AD2d 18). Accordingly, the Supreme Court should have granted that branch of the plaintiff's motion which sought a protective order prohibiting the defendant's expert, Dr. Gingold, from performing invasive procedures, including, but not limited to, a rigid sigmoidoscopy, on Herrera during the defense physical examination.

In her reply affirmation, the plaintiff agreed to produce Herrera for a physical examination by Dr. Gingold, in effect, on condition that the defendant pay all of the costs associated with the transport of Herrera to and from the defendant's designated physician, and any required supervision of Herrera for the physical examination, and upon the further condition that no invasive procedures be performed upon Herrera. In the order appealed from, the Supreme Court directed the defendant to pay those costs. Accordingly, in light of our determination above, that part of the order which, in effect, denied that branch of the plaintiff's motion which sought an order vacating the defendant's notice seeking a physical examination of Herrera has been rendered academic and therefore the appeal therefrom must be dismissed.

You want to enforce that against who? A non-party?

Dune Deck Owners Corp. v J.J. & P. Assoc. Corp., 2011 NY Slip Op 05654 (2nd Dept. 2011)

Since the appellant, a nonparty to this action, was never served with the order to show cause and supporting papers by which the plaintiff sought relief against him, the Supreme Court had no power to award such relief (see Oakley v Albany Med. Ctr., 39 AD3d 1016, 1017; Riverside Capital Advisors, Inc. v First Secured Capital Corp., 28 AD3d 457, 460; Blake v LP 591 Ocean Realty, 237 AD2d 554). Accordingly, to the extent that the order awards relief against the appellant, it must be reversed.