[App Div 2d Dept]

An unpleaded defense: CPLR § 3018

CPLR § 3018

Sullivan v American Airlines, Inc., 2011 NY Slip Op 00215 (App. Div., 2nd 2011)

The defendants did not waive their contention that the plaintiffs relinquished all claims regarding the statements in the final advisories because they accepted reinstatement. Although the defendants failed to plead as an affirmative defense that the plaintiffs relinquished their claims (see CPLR 3018[b]), an unpleaded defense may serve as the basis for granting summary judgment in the absence of surprise or prejudice to the opposing party (see Lerwick v Kelsey, 24 AD3d 918, 919; Sheils v County of Fulton, 14 AD3d 919, 921; Allen v Matthews, 266 AD2d 782; Rogoff v San Juan Racing Assn., 77 AD2d 831, 832, affd 54 NY2d 883).

Interesting 3211(a)(8) Motion

CPLR R. 3211(a)(8)

Lettieri v Cushing, 2011 NY Slip Op 00194 (App. Div., 2nd 2010)

ORDERED that the order is modified, on the law, by adding to the provision denying that branch of the defendants' motion which was, in effect, pursuant to CPLR 3211(a)(8) to dismiss the complaint insofar as asserted against the defendant Jumpking, Inc., a further provision that the denial is without prejudice to renewal upon the completion of discovery on the issue of whether personal jurisdiction may be established over that defendant; as so modified, the order is affirmed insofar as appealed from, without costs or disbursements.

As the party seeking to assert personal jurisdiction, the plaintiff bears the burden of proof on this issue (see Castillo v Star Leasing Co.,69 AD3d 551; Shore Pharm. Providers, Inc. v Oakwood Care Ctr., Inc., 65 AD3d 623, 624; Brinkmann v Adrian Carriers, Inc., 29 AD3d 615, 616; Ying Jun Chen v Lei Shi, 19 AD3d 407). However, "in opposing a motion to dismiss pursuant to CPLR 3211(a)(8) on the ground that discovery on the issue of personal jurisdiction is necessary, plaintiffs need not make a prima facie showing of jurisdiction, but instead must only set forth, a sufficient start, and show[ ] their position not to be frivolous'" (Shore Pharm. Providers, Inc. v Oakwood Care Ctr., Inc., 65 AD3d at 624, quoting Peterson v Spartan Indus., 33 NY2d 463, 467). "[T]he plaintiffs need only demonstrate that facts may exist' to exercise personal jurisdiction over the defendant" (Ying Jun Chen v Lei Shi, 19 AD3d at 408, quoting Peterson v Spartan Indus.,33 NY2d at 467; see Castillo v Star Leasing Co., 69 AD3d 551). [*2]

Here, in opposition to the defendants' motion to dismiss, the plaintiff established that facts "may exist" to exercise personal jurisdiction over the defendant Jumpking, Inc. (hereinafter Jumpking), and made a "sufficient start" to warrant further disclosure on the issue of whether personal jurisdiction may be established over that defendant (Peterson v Spartan Indus., 33 NY2d at 467; see Castillo v Star Leasing Co.,69 AD3d at 552). Thus, the Supreme Court properly denied that branch of the defendants' motion which was, in effect, pursuant to CPLR 3211(a)(8) to dismiss the complaint insofar as asserted against Jumpking. However, the Supreme Court should have denied that branch of the defendants' motion without prejudice to renewal upon the completion of discovery on the issue of whether personal jurisdiction may be established over Jumpking (see Peterson v Spartan Indus., 33 NY2d at 467; Castillo v Star Leasing Co., 69 AD3d at 552).

In addition, CPLR 3212(f) permits a party opposing a motion for summary judgment to obtain further discovery when it appears that facts supporting the position of the opposing party exist but cannot be stated (see Botros v Flamm, 77 AD3d 602; Family-Friendly Media, Inc. v Recorder Tel. Network, 74 AD3d 738; Aurora Loan Servs., LLC v LaMattina & Assoc., Inc., 59 AD3d 578). Under the circumstances presented here, the Supreme Court properly denied, as premature, with leave to renew upon the completion of disclosure, that branch of the defendants' motion which was for summary judgment dismissing the complaint insofar as asserted against the defendant Wal-Mart Stores, Inc., doing business as Sam's Club.

CPLR R. 3025

CPLR R. 3025 Amended and supplemental pleadings
(b) Amendments and supplemental pleadings by leave

Giunta's Meat Farms, Inc. v Pina Constr. Corp.

Generally, leave to amend a pleading pursuant to CPLR 3025(b) should be freely granted in the absence of prejudice or surprise resulting directly from the delay in seeking leave (see Rosicki, Rosicki & Assoc., P.C. v Cochems, 59 AD3d 512; Janssen v Incorporated Vil. of Rockville Ctr., 59 AD3d 15, 27; Bennett v Long Is. Jewish Med. Ctr., 51 AD3d 959; Lucido v Mancuso, 49 AD3d 220, 222, 227). Furthermore, a court should not examine the merits or legal sufficiency of the proposed amendment unless it is palpably insufficient or patently devoid of merit on its face (see Rosicki, Rosicki & Assoc., P.C. v Cochems, 59 AD3d at 514; Lucido v Mancuso, 49 AD3d at 227).

Order directing to file NOI the same as 90 day notice.

CPLR R. 3216 Want of prosecution

CPLR § 2004 Extensions of time generally

Fenner v County of Nassau, 2011 NY Slip Op 00178 (App. Div., 2nd 2011)

The certification order of the Supreme Court dated February 19, 2008, directing the plaintiff to file a note of issue within 90 days, and warning that the complaint would be deemed dismissed without further order of the Supreme Court if the plaintiff failed to comply with that directive, had the same effect as a valid 90-day notice pursuant to CPLR 3216 (see Sicoli v Sasson, 76 AD3d 1002; Rodriguez v Five Towns Nissan, 69 AD3d 833; Petersen v Lysaght, Lysaght & Kramer, P.C., 47 AD3d 783). Having received a 90-day notice, the plaintiff was required either to serve and file a timely note of issue or to move pursuant to CPLR 2004, prior to the default date, to extend the time within which to serve and file a note of issue (see Sharpe v Osorio, 21 AD3d 467, 468; DeVore v Lederman, 14 AD3d 648, 649; Bokhari v Home Depot U.S.A., 4 AD3d 381, 382). In light of the plaintiff's failure to do either, the complaint was properly dismissed pursuant to CPLR 3216 (see Petersen v Lysaght, Lysaght & Kramer, P.C., 47 AD3d 783).

To vacate the dismissal of the complaint, the plaintiff was required to demonstrate a justifiable excuse for his failure to comply with the certification order and the existence of a potentially meritorious cause of action (see CPLR 3216[e]; Baczkowski v Collins Constr. Co., 89 NY2d 499, 503; Rodriguez v Five Towns Nissan, 69 AD3d at 834; Davis v Cardiovascular Consultants of Long Is., P.C., 65 AD3d 1076, 1077; Petersen v Lysaght, Lysaght & Kramer, P.C., 47 AD3d 783). [*2]

In support of his motion, the plaintiff failed to proffer any excuse for his failure to comply with the certification order. The excuse of law office failure proffered by the plaintiff's attorney for the first time in a reply affirmation was not properly before the Supreme Court (seeCPLR 2214; 47 Thames Realty, LLC v Robinson, 61 AD3d 923, 924; Murray v New York City Health & Hosps. Corp., 52 AD3d 792, 794; Levine v Forgotson's Cent. Auto & Elec., Inc., 41 AD3d 552, 553). Moreover, the conclusory and unsubstantiated claim of law office failure did not rise to the level of a reasonable excuse (see Petersen v Lysaght, Lysaght & Kramer, P.C., 47 AD3d at 784; Matter of Bloom v Lubow, 45 AD3d 680; Lugauer v Forest City Ratner Co., 44 AD3d 829, 830). Furthermore, the plaintiff's motion papers failed to establish the existence of a potentially meritorious cause of action (see Dixon v Village of Spring Val., 50 AD3d 943; Apostolakis v Centereach Fire Dist., 300 AD2d 516; Sandstrom v Rodriguez, 221 AD2d 513).

Good opp not always required

Rely on this and you are a fool, but be aware.

Collins v 5840 Merrick Rd. Realty Corp., 2011 NY Slip Op 00172 (App. Div., 2nd 2011)

Viewing the evidence in the light most favorable to the plaintiff (see Martinez v Khaimov, 74 AD3d 1031; Rivera v YMCA of Greater N.Y., 37 AD3d 579), the defendants failed to establish, prima facie, that they did not create the alleged hazardous condition or have actual or constructive notice of it (see Edwards v Great Atl. & Pac. Tea Co., Inc., 71 AD3d 721; Perlongo v Park City 3 & 4 Apts., Inc., 31 AD3d 409). The conflicting evidence submitted by the defendants concerning the facts surrounding the accident raised a triable issue of fact regarding whether the defendants had notice of the alleged hazardous condition (see generally Tunison v D.J. Stapleton, Inc., 43 AD3d 910; Lawson v Rutland Nursing Home, Inc., 65 AD3d 572; Kolivas v Kirchoff, 14 AD3d 493). Since the defendants failed to meet their initial burden as the movants, we need not review the sufficiency of the plaintiff's opposition papers (see Winegrad v New York Univ. Med. Ctr., 64 NY2d 851; Britto v Great Atl. & Pac. Tea Co., Inc., 21 AD3d 436; Joachim v 1824 Church Ave., Inc., 12 AD3d 409).

The shoe is on the other hand now

Westchester Med. Ctr. v GMAC Ins. Co. Online, Inc., 2011 NY Slip Op 00217 (App. Div., 2nd 2011)

In this regard, although the defendants stated, in their motion for summary judgment, that they first received the no-fault bill on May 7, 2009, or on May 9, 2010, the defendant did not establish that fact by submitting a copy of the bill [*2]received on one of those dates. Therefore, the defendants failed to submit evidence raising a triable issue of fact as to whether they timely denied the claim after issuing timely requests for additional verification (see 11 NYCRR 65-3.5; Hospital for Joint Diseases v Travelers Prop. Cas. Ins. Co., 9 NY3d 312, 317).

Moreover, although the defendants contend that they submitted evidence showing that the plaintiff's assignor misrepresented his state of residence in connection with the issuance of the subject insurance policy, the defendants are precluded from asserting that defense, as a result of their untimely denial of the claim (see Fair Price Med. Supply Corp. v Travelers Indem. Co., 10 NY3d 556, 564; Hospital for Joint Diseases v Travelers Prop. Cas. Ins. Co., 9 NY3d at 319; Westchester Med. Ctr. v Lincoln Gen. Ins. Co., 60 AD3d 1045, 1046-1047).

Although the defendants contend, on appeal, that North Carolina law should apply to this action, and that New York law does not preclude them from denying coverage, they did not raise that specific argument before the Supreme Court. Consequently, that contention is not properly before this Court (see Boudreau-Grillo v Ramirez, 74 AD3d 1265, 1268; Matter of Panetta v Carroll, 62 AD3d 1010).

Another App. Div. no-fault case:

Englington Med., P.C. v Motor Veh. Acc. Indem. Corp., 2011 NY Slip Op 00176 (App. Div., 2nd 2011)

Generally, motorcycle riders, whether operators or passengers, are not entitled to first-party no-fault insurance benefits from MVAIC (see Insurance Law § 5103[a][1], [2]; see also Quinones v Motor Veh. Acc. Indem. Corp., 6 Misc 3d 1007[A], 2004 NY Slip Op 51729[U]; 2-27 New Appleman New York Insurance Law § 27.04[3] [2d ed] ["Occupants of a motorcycle are excluded from coverage and are never entitled to no-fault benefits"]). A motorcycle is defined in the Insurance Law as "any motorcycle, as defined in [Vehicle and Traffic Law § 123], and which is required to carry financial security pursuant to article six, eight or forty-eight-A of the vehicle and traffic law" (Insurance Law § 5102[m] [emphasis added]). The Vehicle and Traffic Law defines a motorcycle as a "motor vehicle having a seat or saddle for the use of the rider and designed to travel on not more than three wheels in contact with the ground, but excluding a tractor" (Vehicle and Traffic Law § 123). Pursuant to the Vehicle and Traffic Law, class C motorcycles, which have a maximum speed of 20 miles per hour, are not required to carry insurance (see Vehicle and Traffic Law §§ 121-b, 2265[3]). Construing these provisions together, the operator of or passenger on a class C motorcycle is entitled to no-fault benefits in the absence of any other statutory preclusion of benefits (see Tyler v Traveler's Ins. Co., 110 Misc 2d 471, 473 [operators of and passengers on "class C mopeds, minibikes and go-carts are entitled to first-party benefits under no-fault"]; 2-27 New Appleman New York Insurance Law § 27.04[3] ["Occupants of . . . limited-use class C motorcycles will not be excluded from coverage"]). Thus, not all motorcycles are required to carry insurance.
MVAIC's Motion for Summary Judgment

On its motion for summary judgment, MVAIC had the burden of establishing, by proof in admissible form, its prima facie entitlement to judgment as a matter of law (see CPLR 3212[b]; Zuckerman v City of New York, 49 NY2d 557, 561). To meet its burden, MVAIC was required to establish, prima facie, that Cruz was not a "qualified person" entitled to no-fault benefits either because she owned an uninsured vehicle despite being statutorily required to carry insurance, or because, at the time of the accident, she was operating a "motorcycle" within the meaning of Insurance Law § 5102(m). Here, MVAIC failed to meet its burden.

The only admissible evidence proffered by MVAIC as to the type of vehicle that Cruz was operating when the accident occurred was a form completed on her behalf, setting forth her notice of an intention to make a claim for no-fault benefits (hereinafter the claim form). The claim form was signed by Priscilla Garcia—Cruz's mother and guardian—and indicated that Cruz was the owner and operator of a vehicle designated as vehicle #1, which was described as a "2004 Mini-Bike" for which no insurance existed. Critically, the make and model of the vehicle designated as vehicle #2 is listed as "unknown." Clearly, the term "Mini-Bike" refers to some type of [*4]motorized, two or three-wheeled vehicle (see Oxford English Dictionary Online, http://www.oed.com [accessed July 27, 2010] [defining "minibike" as "(a) small motorcycle with a low-power engine, designed for off-road use and sometimes having three wheels]; Merriam-Webster Online Dictionary,http://www.Merriam-Webster.com [accessed July 27, 2010] [defining "minibike" as "a small one-passenger motorcycle with a low frame and raised handlebars"]). Nevertheless, the use of the word "Mini-Bike" in the claim form, standing alone, is insufficient to establish whether Cruz's vehicle was or was not a class C motorcycle with a maximum speed of 20 miles per hour, because the critical factor in determining a motorcycle's class is its maximum speed (see Vehicle and Traffic Law § 121-b). Thus, MVAIC failed to establish that the vehicle that Cruz was operating was either an uninsured motor vehicle for which she was required to carry insurance, or a motorcycle of a class which required her to carry insurance.

Since MVAIC failed to meet its prima facie burden on its motion for summary judgment, the burden never shifted to Englington to submit, in proper admissible form, evidence sufficient to raise a triable issue of fact (see Alvarez v Prospect Hosp., 68 NY2d 320, 324), despite MVAIC's contention that Englington had the burden of proving that Cruz's vehicle was not required to carry insurance, and failed to meet that alleged burden. In its brief, MVAIC asserts that "[i]t is well settled in this Department that the party seeking benefits from MVAIC bears the burden of establishing that the injured party is a qualified person' who complied with all applicable requirements of Article 52." However, in light of the procedural posture of this case, MVAIC misconstrues the burden applicable to the parties, which is a fundamental aspect of a motion for summary judgment. As the movant, MVAIC must first come forward with admissible evidence demonstrating, prima facie, the absence of material issues of fact and that, on those facts, it is or would be entitled to judgment as a matter of law. MVAIC's burden on a motion for summary judgment cannot be satisfied merely by pointing out gaps in the plaintiff's case (see e.g. Shafi v Motta, 73 AD3d 729, 730; Gamer v Ross, 49 AD3d 598, 600; Totten v Cumberland Farms, Inc., 57 AD3d 653, 664; DeFalco v BJ's Wholesale Club, Inc., 38 AD3d 824, 825).

Late Expert: CPLR 3101(d)

CPLR § 3101(d) Trial Preparation (2) Materials

Campos v Beth Israel Med. Ctr., 2011 NY Slip Op 00344 (App. Div., 2nd 2011)

The expert witness disclosure required by CPLR 3101(d) was served by the plaintiff 6½ years after the incidents complained of, 4 years after the action was commenced, almost 4 years after the original bill of particulars was served, and 1½ years after the amended bill of particulars was served. The expert witness disclosure contained new theories of liability which were not readily discernable from the allegations set forth in the bills of particulars. Accordingly, under the circumstances of this case, the Supreme Court improvidently exercised its discretion in denying the defendants' motion to preclude the plaintiff's expert and any other witnesses called by the plaintiff from testifying concerning certain unpleaded allegations relating to the defendants' alleged malpractice in, inter alia, leaving the patient, Hilda Campos, unattended, leaving the bed rails of her bed down, and allowing her to fall out of her hospital bed onto the floor (see Navarette v Alexiades, 50 AD3d 869, 870;Navarette v Alexiades, 50 AD3d 872, 872; Durant v Shuren, 33 AD3d 843, 844).

Stuff I meant to post but didn’t feel like it at the time.

Bonik v Tarrabocchia, 2010 NY Slip Op 07878 (App. Div., 2nd 2010)

The plaintiff failed to rebut the defendant's sworn statement that he never received a copy of the order entered July 1, 2004, which, inter alia, scheduled a conference for September 29, 2004. The assertion of the plaintiff's attorney that she personally served that order upon the then- pro se defendant was not supported by a proper affidavit of service or other proof of service (see Lambert v Schreiber, 69 AD3d 904). A written statement prepared by the plaintiff's attorney on August 4, 2004, was neither sworn to before a notary public nor subscribed and affirmed to be true under the penalties of perjury and, thus, did not constitute competent evidence of service (see CPLR 2106; Moore v Tappen, 242 AD2d 526). Without notice of the conference, the defendant's "default" was a nullity, as was the remedy imposed by the Supreme Court as a consequence (see CPLR 5015[a][4]; Pelaez v Westchester Med. Ctr., 15 AD3d 375, 376; Tragni v Tragni, 21 AD3d 1084, 1085; cf. Hwang v Tam, 72 AD3d 741, 742). In this situation, vacatur of the default is required as a matter of law and due process, and no showing of a potentially meritorious defense is required (see Pelaez v Westchester Med. Ctr., 15 AD3d at 376; Kumer v Passafiume, 258 AD2d 625, 626). Consequently, the subsequent inquest, the judgment entered March 21, 2006, and the order dated July 16, 2007, were all nullities, and must be vacated. In addition, there was no competent proof that the plaintiff served the defendant with notice of the inquest, a copy of the judgment entered March 22, 2006, with notice of entry, or a copy of the order entered July 20, 2007, with notice of entry.

Rizzo v Kay, 2010 NY Slip Op 09493 (App. Div., 2nd 2010)

Furthermore, under the circumstances of this case, it was not error for the trial court to allow testimony on the issue of whether the appellant abandoned treatment of the plaintiff before fully completing her dental work, and, in effect, to conform the pleadings to the proof adduced at trial by submitting a claim of abandonment to the jury. "A trial court generally has broad discretion to deem the pleadings amended to conform to the evidence presented at the [trial], even absent a motion by a party, provided [that] there is no significant prejudice or surprise to the party opposing the amendment" (Matter of Allstate Ins. Co. v Joseph, 35 AD3d 730, 731; see CPLR 3025[c]; A-1 Check Cashing Serv. v Goodman, 148 AD2d 482). Here, the appellant was not prejudiced or surprised by the admission of evidence on the issue of abandonment and the submission of this issue to the jury, since the issue was explored, and relevant evidence obtained, during discovery (see Alomia v New York City Tr. Auth., 292 AD2d 403, 406; Diaz v New York City Health & Hosps. Corp., 289 AD2d 365, 366).

It was also proper for the trial court to dismiss the appellant's cross claim against the defendant Joseph Maniscalco. The plaintiff failed to present any expert evidence that Dr. Maniscalco departed from good and accepted standards of dental practice, and therefore agreed to withdraw her dental malpractice claim against Dr. Maniscalco at the close of her case. While the appellant opposed Dr. Maniscalco's motion to dismiss the cross claim against him upon the ground that there was a factual dispute as to whether Dr. Maniscalco was an independent contractor who could be held liable for his own acts of malpractice, the appellant's expert witness disclosure statement failed to identify any departures from good and accepted standards of dental practice which Dr. Maniscalco may have committed. Under these circumstances, the trial court providently exercised its discretion in ruling that the appellant would be precluded from offering expert testimony as to whether Dr. Maniscalco committed any acts of dental malpractice (see CPLR 3101[d][1][i]; Lucian v Schwartz, 55 AD3d 687, 688; Parlante v Cavallero, 73 AD3d 1001; Schwartzberg v Kingsbridge Hgts. Care Ctr., Inc., 28 AD3d 463, 464), and in concluding that absent such expert testimony, the appellant could not establish a prima facie case of dental malpractice against Dr. Maniscalco, and therefore could not prevail upon his cross claim (see Perricone-Bernovich v Gentle Dental, 60 AD3d 744, 745; Sohn v Sand, 180 AD2d 789, 790.

Comice v Justin's Rest., 2010 NY Slip Op 07884 (App. Div., 2nd 2010)

The Supreme Court properly denied that branch of the plaintiff's motion which was pursuant to CPLR 1003 for leave to amend the summons and complaint to add Andre Suite as a defendant. The statute of limitations expired and the plaintiff failed to demonstrate that the relation-back doctrine was applicable (see CPLR 203[f]; Buran v Coupal, 87 NY2d 173). In order for claims asserted against a new defendant to relate back to the date the claims were filed against an original defendant, the plaintiff must establish, inter alia, that the new party knew or should have known that, but for a mistake by the plaintiff as to the identity of the proper parties, the action would have been brought against that party as well (see Buran v Coupal, 87 NY2d at 178; Arsell v Mass One LLC, 73 AD3d 668, 669; Boodoo v Albee Dental Care, 67 AD3d 717, 718). Here, the plaintiff failed to establish that Suite knew or should have known that, but for a mistake as to the identity of the proper parties, this action would have been brought against him as well (see Boodoo v Albee Dental Care, 67 AD3d at 718; Marino v Westchester Med. Group, P.C., 50 AD3d 861; Yovane v White Plains Hosp. Ctr., 228 AD2d 436, 437; see also Bumpus v New York City Tr. Auth., 66 AD3d 26, 34-35).

Furthermore, the Supreme Court properly denied that branch of the plaintiff's motion which was, in effect, pursuant to CPLR 1024 to name Andre Suite as a defendant in lieu of "John Doe." In order to employ the procedural mechanism made available by CPLR 1024, a plaintiff must show that he or she made timely efforts to identify the correct party before the statute of limitations expired (see Bumpus v New York City Tr. Auth., 66 AD3d at 29-30; Harris v North Shore Univ. Hosp. at Syosset, 16 AD3d 549, 550; Justin v Orshan, 14 AD3d 492, 492-493; Scoma v Doe, 2 AD3d 432, 433; Porter v Kingsbrook OB/GYN Assoc., 209 AD2d 497). Here, the plaintiff failed to make such a showing.

Sanchez v Avuben Realty LLC, 2010 NY Slip Op 08780 (App. Div., 1st 2010)

An application brought pursuant to CPLR 5015 to be relieved from a judgment or order entered on default requires a showing of a reasonable excuse and legal merit to the defense asserted (see Crespo v A.D.A. Mgt., 292 AD2d 5, 9 [2002]). While the failure to keep a current address with the Secretary of State is generally not a reasonable excuse for default under CPLR 5015(a)(1) (id. at 9-10), where a court finds that a defendant failed to "personally receive notice of the summons in time to defend and has a meritorious defense," relief from a default may be permitted (CPLR 317; see Eugene Di Lorenzo, Inc. v A.C. Dutton Lbr. Co., 67 NY2d 138, 142 [1986]).

Here, notwithstanding the Secretary of State's maintenance of the wrong corporate address, the evidence of record demonstrates that defendant did receive notice of the summons in time to interpose a defense, and inexplicably failed to do so. It is undisputed that six months after the complaint's filing, counsel for defendant's insurer contacted plaintiff's counsel to discuss settlement, at which time he was informed of the then-pending motion for default judgment. The very fact that settlement options were discussed at this time evidences that defendant was aware of plaintiff's action. Moreover, vacatur of a default judgment is not warranted merely because the default was occasioned by lapses on the part of an insurance carrier (see Klein v Actors & Directors Lab, 95 AD2d 757 [1983], lv dismissed 60 NY2d 559 [1983];Lemberger v Congregation Yetev Lev D'Satmar, Inc., 33 AD3d 671, 672 [2006]). The evidence of record also indicates that five months after filing of the summons and complaint, copies thereof were delivered to an undisputably valid address for defendant, as was notice of entry of the Supreme Court's March 26, 2007 order granting plaintiff's motion for default judgment and [*2]noticing an inquest as to damages. Still defendant took no action until approximately two-and-a-half years after the complaint's filing, when plaintiff attempted to collect on the Supreme Court's judgment.

Defendant failed to establish entitlement to vacatur of the default judgment under CPLR 5015(a)(3) due to an alleged fraud perpetrated by plaintiff in support of his complaint, as the affidavit it submitted in support of this claim was both conclusory and recounted hearsay.

Gibbs v St. Barnabas Hosp., 2010 NY Slip Op 09198 (Ct. App. 2010)

Under CPLR 3042 (d), a court may invoke the relief set forth in CPLR 3126 when a "party served with a demand for a bill of particulars willfully fails to provide particulars which the court finds ought to have been provided pursuant to this rule." CPLR 3126, in turn, governs discovery penalties and applies where a party "refuses to obey an order for disclosure or wilfully fails to disclose information which the court finds ought to have been disclosed." The statute contains a list of nonexclusive sanctions and further permits courts to fashion orders "as are just." CPLR 3126 therefore broadly empowers a trial court to craft a conditional order — an order "that grants the motion and imposes the sanction 'unless' within a specified time the resisting party submits to the disclosure" (Connors, Practice Commentaries, McKinney's Cons Laws of NY, Book 7B, CPLR C3126:10 ["The conditional order is in fact the most popular disposition under CPLR 3126"]; see also CPLR 3042 [d]).

The situation that developed in this case is, unfortunately, a scenario that we have seen before. In Fiore v Galang (64 NY2d 999 [1985], affg 105 AD2d 970 [3d Dept 1984]), a medical malpractice action, the trial court granted a 30-day conditional order of preclusion directing plaintiffs to serve a bill of particulars on the defendant hospital. Following plaintiffs' lack of compliance with the order, the hospital moved for summary judgment dismissing the complaint. The trial court denied the motion on the condition that plaintiffs serve a bill of particulars and pay $415 to the hospital's attorneys ^[FN3]. On appeal, the Appellate Division reversed and dismissed the complaint, concluding that the trial court erred in excusing the default without requiring plaintiff to offer both a reasonable excuse and an affidavit of merit. We affirmed, explaining that "absent an affidavit of merits it was error, as a matter of law, not to grant defendant Hospital's motion for summary judgment" (id. at 1000 [emphasis added]).

***

In reaching this conclusion, we reiterate that "[l]itigation cannot be conducted efficiently if deadlines are not taken seriously, and we make clear again, as we have several times before, that disregard of deadlines should not and will not be tolerated" (Andrea v Arnone, Hedin, Casker, Kennedy & Drake, Architects & Landscape Architects, P.C. [Habiterra Assoc.], 5 NY3d 514, 521 [2005]; see also Wilson v Galicia Contr. & Restoration Corp., 10 NY3d 827, 830 [2008]; Miceli v State Farm Mut. Auto. Ins. Co., 3 NY3d 725, 726-727 [2004]; Brill, 2 NY3d at 652-653; Kihl, 94 NY2d at 123).

Conform pleading to the proof. CPLR R. 3025(c)

CPLR R. 3025(c)

Worthen-Caldwell v Special Touch Home Care Servs., Inc., 2010 NY Slip Op 08096 (App. Div., 2nd 2010)

" Leave to conform a pleading to the proof pursuant to CPLR 3025(c) should be freely granted absent prejudice or surprise resulting from the delay'" (Bryant v Broadcast Music, Inc., 60 AD3d 799, 800, quoting Alomia v New York City Tr. Auth., 292 AD2d 403, 406). The determination whether to grant such leave is within the court's discretion, and the exercise of that discretion will not be lightly disturbed (see Surgical Design Corp. v Correa, 31 AD3d 744, 745; Comsewogue Union Free School Dist. v Allied-Trent Roofing Sys., Inc., 15 AD3d 523, 524; Leonardi v City of New York, 294 AD2d 408, 409; Castagne v Barouh, 249 AD2d 257, 257-258). In determining whether a motion for leave to conform should be granted, the court " should consider how long the party seeking the amendment was aware of the facts upon which the motion was predicated, whether a reasonable excuse for the delay was offered, and whether prejudice resulted therefrom'" (American Cleaners, Inc. v American Intl. Specialty Lines Ins. Co., 68 AD3d 792, 794, quoting Cohen v Ho, 38 AD3d 705, 706; see Rose v Velletri, 202 AD2d 566, 567; Rothstein v City Univ. of N.Y., 194 AD2d 533). " Mere lateness is not a barrier to the amendment. It must be lateness coupled with significant prejudice to the other side, the very elements of the laches doctrine'" (Edenwald Contr. Co. v City of New York, 60 NY2d 957, 959, quoting Siegel, Practice Commentaries, McKinney's Cons Laws of NY, Book 7B, CPLR 3025:5, at 477 [1974 ed]; see Abrahamian v Tak Chan, 33 AD3d 947, 949; Sievert v Morlef Holding Co., 220 AD2d 403; Evans v Kringstein, 193 AD2d 714).

Here, the Supreme Court, after weighing these considerations, permitted the plaintiff to conform her pleadings to the proof by adding a claim under the New York City Human Rights Law, but accepted the defendants' principal argument that they would be prejudiced by the resultant availability of punitive damages, and therefore disallowed any punitive damages claim. In doing so, the Supreme Court did not improvidently exercise its discretion (see 715 Ocean Parkway Owners Corp. v Klagsbrun, 74 AD3d 1314; Bryant v Broadcast Music, Inc., 60 AD3d 799; RCLA, LLC v 50-09 Realty, LLC, 48 AD3d 538, 539; Pansini Stone Setting, Inc. v Crow & Sutton Assoc., Inc., 46 AD3d 784, 786; Dinizio & Cook, Inc. v Duck Cr. Mar. at Three Mile Harbor, Ltd., 32 AD3d 989, 990).

“evidentiary rulings which, even when made in advance of trial on motion papers, are not appealable, either as of right or by permission”

CPLR § 5701 Appeals to appellate division from supreme and county courts

Rosenfeld v Baker, 2010 NY Slip Op 08087 (App. Div., 2nd 2010)

The appeal from the order dated September 8, 2008, must be dismissed because the portions of the order appealed from concern evidentiary rulings which, even when made in advance of trial on motion papers, are not appealable, either as of right or by permission (seeCPLR 5701; Barnes v Paulin, 52 AD3d 754; Citlak v Nassau County Med. Ctr., 37 AD3d 640; Cotgreave v Public Adm'r of Imperial County [Cal], 91 AD2d 600, 601). The issues raised on the appeal from the order dated September 8, 2008, are brought up for review and have been considered on the appeal from the judgment (see CPLR 5501[a][1]). The appeal from the order dated January 12, 2009, must be dismissed, as no appeal lies from an order denying reargument.

Contrary to the plaintiff's contention, the defendants' medical experts were properly permitted to testify at trial, inter alia, based upon their review of the plaintiff's medical records (see Matter of Meyer v Board of Trustees of N.Y. City Fire Dept., Art. 1-B Pension Fund, 90 NY2d 139). The fact that the defendants' psychiatric expert did not examine the plaintiff goes only to the weight of his testimony, not to its admissibility (see Weigert v Baker, 217 AD2d 1011).