Category: [App Div 2d Dept]

CPLR R. 2101 Form of papers

CPLR R. 3212(f)

Monteleone v Jung Pyo Hong, 2010 NY Slip Op 09484 (App. Div., 2nd 2010)

In opposition, the defendant failed to submit any evidence in admissible form sufficient to raise a triable issue of fact with respect to the issue of liability (see Pitt v Alpert, 51 AD3d at 651; Ramos v Triboro Coach Corp., 31 AD3d 625; Iqbal v Petrov, 9 AD3d 416). The defendant failed to proffer any excuse for his failure to submit his affidavit, translated from Korean to English by his wife, in admissible form (seeCPLR 2101[b]; Chemical Bank v PIC Motors Corp., 58 NY2d 1023, 1026; Martinez v 123-16 Liberty Ave. Realty Corp, 47 AD3d 901, 902; Allstate Ins. Co. v Keil, 268 AD2d 545; Schiffren v Kramer, 225 AD2d 757) and, under the circumstances of this case, the Supreme Court correctly declined to consider the translated affidavit.

Furthermore, in view of the fact that the defendant had personal knowledge of the relevant facts underlying the accident, his purported need to conduct discovery did not warrant denial of the motion (see Emil Norsic & Son, Inc. v L.P. Transp., Inc., 30 AD3d 368, 369;Rainford v Sung S. Han, 18 AD3d 638; Niyazov v Bradford, 13 AD3d 501).

National Puerto Rican Day Parade, Inc. v Casa Publs., Inc., 2010 NY Slip Op 09387 (App. Div., 1st 2010)

Casa sought dismissal of the complaint under CPLR 2101(b), arguing that plaintiffs failed to attach an English translation for each article in its entirety, and that the translator affidavits were insufficient because the affidavits were not signed contemporaneously with the verified complaint, because they did not include an itemized list of the translators' qualifications, and because the translators' names were not printed below the signature line. Additionally, Feliciano sought to dismiss the eleventh and thirteenth causes of action, arguing that by merely providing [*2]information to Casa he did not cause the articles to be published. Plaintiffs submitted an attorney affidavit in opposition to Feliciano's motion to dismiss, stating that they would be able to show that Feliciano authorized Casa to recommunicate his statements, and that he also paid Casa to publish his "open letter," which discusses individual members associated with NPRDP.

A statute should be interpreted "so as to give effect to the plain meaning of the words used" (Doctors Council v New York City Employees' Retirement Sys., 71 NY2d 669, 675 [1988]). Under CPLR 2101(b) each paper served or filed shall be in the English language and where an affidavit or exhibit annexed to a paper served or filed is in a foreign language, it shall be accompanied by an English translation and an affidavit by the translator stating his or her qualifications and that the translation is accurate. Plaintiffs provided sufficient translator affidavits because both affidavits state that the translators are "qualified professional[s]," competent in both Spanish and English, and that the translations are an "accurate and complete rendering of the content of the original document." (see Polish Am. Immigration Relief Comm. v Relax, 172 AD2d 374 [1991]).

The certification that the translation was done by a professional translator competent in both languages is sufficient, especially in this particular case. The statute does not require that the translator affidavit include an "itemized" list of qualifications. Moreover, Casa had adequate notice and it shows no prejudice from the lack of an itemized list of qualifications. Casa does not allege that it — the publisher, editor and writer for a Spanish language newspaper — could not read and understand the articles in the language in which they were written, nor is there any claim that the translations are inaccurate.

The statute also does not require that the translator's affidavit list what was translated. Nor do the words of the statute mandate a "complete translation" as argued by Casa. Moreover, it is perfectly apparent that the articles themselves were the translated documents because they were annexed to the translators' affidavits and submitted with the complaint. Indeed, each of the 19 articles is individually identified within the body of the complaint by the publication date, author's name, and exhibit letter. These identifying characteristics can be matched directly to 

CPLR R. 2221

Mazinov v Rella, 2010 NY Slip Op 09479 (App. Div., 2nd 2010)

A motion for leave to reargue "shall be based upon matters of fact or law allegedly overlooked or misapprehended by the court in determining the prior motion, but shall not include any matters of fact not offered on the prior motion" (CPLR 2221[d][2]). A motion for leave to reargue "is not designed to provide an unsuccessful party with successive opportunities to reargue issues previously decided, or to present arguments different from those originally presented" (McGill v Goldman, 261 AD2d 593, 594; see V. Veeraswamy Realty v Yenom Corp., 71 AD3d 874; Woody's Lbr. Co., Inc. v Jayram Realty Corp., 30 AD3d 590; Gellert & Rodner v Gem Community Mgt., Inc., 20 AD3d 388; Pryor v Commonwealth Land Tit. Ins. Co., 17 AD3d 434; Amato v Lord & Taylor, Inc., 10 AD3d 374). Here, the Supreme Court improvidently exercised its discretion in granting the plaintiffs' motion for leave to reargue since they failed to show that the Supreme Court overlooked or misapprehended the relevant facts or misapplied any controlling principle of law and improperly presented arguments not previously advanced (see CPLR 2221[d][2]). 

Rostant v Swersky, 2010 NY Slip Op 08987 (App. Div., 1st 2010)

Plaintiff was not precluded from moving for reargument before the order on the first decision was entered. "A court has the inherent power, sua sponte or on motion of a party, to reconsider and vacate its prior decision before issuing an order thereon" (Hulett v Niagara Mohawk Power Corp., 1 AD3d 999, 1003 [2003]; Manocherian v Lenox Hill Hosp., 229 AD2d 197, 202-203 [1997], lv denied 90 NY2d 835 [1997]). Nor did plaintiff's failure to submit all the original motion papers on her reargument motion render the latter procedurally defective. CPLR 2221 does not specify the papers that must be submitted on a motion for reargument, and the decision whether to entertain reargument is committed to the sound discretion of the court (William P. Pahl Equip. Corp. v Kassis, 182 AD2d 22, 27 [1992], lv dismissed in part, denied in part, 80 NY2d 1005 [1992]). Moreover, the motion court gave all parties the opportunity to supplement the record with the underlying papers, and afforded defendants the opportunity to present any further argument warranted by the additional submissions. Thus, defendants were not prejudiced by the deficiencies in plaintiff's submissions on reargument or by the procedures adopted by the court (see Addison v New York Presbyt. Hosp./Columbia Univ. Med. Ctr., 52 AD3d 269 [2008]).

CPLR R. 4518 Business records

Kamolov v BIA Group, LLC, 2010 NY Slip Op 09890 (App. Div., 2nd 2010)

The Supreme Court properly denied the plaintiff's motion for summary judgment on the issue of liability on his cause of action pursuant to Labor Law § 240(1). In opposition to the plaintiff's prima facie showing of entitlement to judgment as a matter of law on that cause of action, the defendants raised a triable issue of fact as to the manner in which the accident occurred (see e.g. Kumar v Stahlunt Assoc., 3 AD3d 330; Park v Ferragamo, 282 AD2d 588; Avendano v Sazerac, Inc., 248 AD2d 340, 341). In this regard, the plaintiff failed to demonstrate that relevant portions of the medical records submitted by the defendants in opposition to his motion constituted inadmissible hearsay. The statements in the records regarding the manner in which the accident occurred were germane to the diagnosis and/or treatment of the plaintiff, and were properly considered as business records (see Harrison v Bailey,AD3d, 2010 NY Slip Op 09221 [2d Dept 2010];see also Rodriguez v Piccone, 5 AD3d 757, 758; Wright v New York City Hous. Auth., 273 AD2d 378, 379; Eitner v 119 W. 71st St. Owners Corp., 253 AD2d 641, 641-642). The plaintiff's remaining challenges to the defendants' reliance on the business records exception to the hearsay rule were not raised in the Supreme Court (see Buckley v J.A. Jones/GMO, 38 AD3d 461, 463) and, in any event, are without merit. Furthermore, the challenged statements set forth in the ambulance report also were admissible on the independent ground that they constituted admissions by the plaintiff, since they are inconsistent with his current account of the accident and the statements were satisfactorily connected to him (see generally Preldakaj v Alps Realty of NY Corp., 69 AD3d 455, 456-457).

Matter of Carothers v GEICO Indem. Co., 2010 NY Slip Op 09256 (App. Div., 2nd 2010)

The testimony of an employee of the company that handled the plaintiff's medical billing was insufficient to lay a foundation for the admission of the claim forms under the business records exception of the hearsay rule (see Art of Healing Medicine, P.C. v Travelers Home & Mar. Ins. Co., 55 AD3d 644). Such records were inadmissible because the billing company did not create the records and there was no showing that its employee was familiar with the particular record- keeping procedures of the plaintiff (see West Val. Fire Dist. No. 1 v Village of Springville, 294 AD2d 949, 950). Further, although a proper foundation can be established by a recipient of records who does not have personal knowledge of the maker's business practices and procedures, there must still be a showing that the recipient either incorporated the records into its own records or relied upon the records in its day-to-day operations (see People v A & S DiSalvo, Co., 284 AD2d 547, 548; Plymouth Rock Fuel Corp. v Leucadia, Inc., 117 AD2d 727). Here, the billing company's mere printing and mailing of the documents to the insurer did not establish that the documents were incorporated into its records or that it relied upon the records in its regular course of business (see Lodato v Greyhawk N. Am., LLC, 39 AD3d 494,495). Since the subject documents were inadmissible, the plaintiff failed to establish its prima facie case, and the Appellate Term properly reversed the judgment in the plaintiff's favor

Harrison v Bailey, 2010 NY Slip Op 09221 (App. Div., 2nd 2010)

The Supreme Court erred in granting the plaintiff's motion for summary judgment on the issue of liability. While the plaintiff established his prima facie entitlement to summary judgment on the issue of liability (see generally Winegrad v New York Univ. Med. Ctr.,64 NY2d 851, 852; Zuckerman v City of New York, 49 NY2d 557, 562), the defendants' proffered accident report, which contained a statement from Bailey that the plaintiff had crossed into Bailey's lane, causing the accident, raised a triable issue of fact (see Alvarez v Prospect Hosp., 68 NY2d 320, 324; Bradley v Ibex Constr., LLC, 54 AD3d 626, 627). Contrary to the plaintiff's contention, the accident report was admissible evidence under the business record exception to the rule against hearsay. While an unsworn accident report, by itself, does not constitute evidence in admissible form sufficient to defeat a motion for summary judgment (see Morgan v Hachmann, 9 AD3d 400, 401; Hegy v Coller, 262 AD2d 606), it may be admissible in evidence if it qualifies as a business record (see Bradley v IBEX Constr., LLC, 54 AD3d at 627; cf. Bendik v Dybowski, 227 AD2d 228, 229). Here, the affidavit of Atlantic's Safety Manager established the elements required for the admissibility of the accident report as a business record pursuant to CPLR 4518(a), namely, that the report (1) was required of Bailey as a condition of his employment, (2) was made at or about the time of the accident, and (3) was maintained by Atlantic in the regular course of its business (see Bradley v IBEX Constr., LLC, 54 AD3d at 627; Galanek v New York City Tr. Auth., 53 AD2d 586;Bishin v New York Cent. R.R. Co., 20 AD2d 921). Once admissible, any challenges to the report extend only to the weight it will be given (see CPLR 4518[a]). Here, the order dated August 1, 2008, only precluded Bailey from "testifying at the trial of the action." Such language cannot be read as precluding Bailey from opposing a motion for summary judgment through the submission of documentary evidence. Moreover, the language of the order of preclusion does not prohibit Atlantic, as Bailey's former employer, from proffering any form of evidence at any time in the action. Indeed, the nature and degree of the penalty to be imposed pursuant to CPLR 3126 is a matter within the discretion of the court (see Jaffe v Hubbard, 299 AD2d 395, 396). Had the Supreme Court intended to preclude Bailey from proffering any forms of evidence, as the plaintiff maintains, it could have done so in the order dated August 1, 2008, by specifically precluding all forms of evidence or by striking Bailey's answer outright under CPLR 3126(3).

J.D.M. Imports Co., Inc. v Hartstein, 2010 NY Slip Op 09186 (App. Div., 1st 2010)

The court correctly found that plaintiff's computer database was a business record (see Ed Guth Realty v Gingold, 34 NY2d 440, 451 [1974]), and then properly admitted a print-out from the database (see People v Weinberg, 183 AD2d 932, 933 [1992], lv denied 80 NY2d 977 [1992]; see also Guth, 34 NY2d at 452).