Category: [App Div 2d Dept]

Something that everyone knows, but is constantly ignored

CPLR R. 3211(a)(8)the court has not jurisdiction of the person of the defendant 

Associates First Capital Corp. v Wiggins, 2010 NY Slip Op 06225 (App. Div., 2nd, 2010)

The Supreme Court properly denied, without a hearing, inter alia, that branch of the defendants' motion which was to dismiss the complaint for lack of personal jurisdiction. "A process server's affidavit of service constitutes prima facie evidence of proper service" (Scarano v Scarano, 63 AD3d 716, 716). "Although a defendant's sworn denial of receipt of service generally rebuts the presumption of proper service established by the process server's affidavit and necessitates an evidentiary hearing (see Skyline Agency v Coppotelli, Inc., 117 AD2d 135, 139), no hearing is required where the defendant fails to swear to specific facts to rebut the statements in the process server's affidavits'" (Scarano v Scarano, 63 AD3d at 716, quoting Simonds v Grobman, 277 AD2d 369, 370). Here, since the defendants' affidavits amounted to no more than bare and conclusory denials of service which were insufficient to rebut the prima facie proof of proper service pursuant to CPLR 308(1) and (2) created by the process server's affidavit, no hearing was required (see City of New York v Miller, 72 AD3d 726; Scarano v Scarano, 63 AD3d at 716; Mortgage Elec. Registration Sys., Inc. v Schotter, 50 AD3d 983, 983; 425 E. 26th St. Owners Corp. v Beaton, 50 AD3d 845, 846; Simonds v Grobman, 277 AD2d 369, 370).

By "defendant's sworn denial of receipt"  the Court does not mean that just anyone can deny receipt.  The person who was served has to do it or a person with sufficient knowledge. "I checked the file" is not sufficient.  But, like anything else, there are exceptions.

For some crazy reason, typepad decided to get rid of the justify button.  Posts will take longer because of this.

Hoisted by one’s own petard

JT posted the case first, but I like my title better.

Abdalla v Mazl Taxi, Inc., 2010 NY Slip Op 06071 (App. Div., 2nd, 2010)

Contrary to the Supreme Court's determination, the defendants failed to
meet their prima facie burden of showing that the plaintiff did not
sustain a serious injury within the meaning of Insurance Law § 5102(d)
as a result of the subject accident (see Toure v Avis Rent A Car Sys., 98 NY2d 345; Gaddy v Eyler, 79
NY2d 955, 956-957). The defendants, in support of their motion, relied
on some of the plaintiff's own medical reports. One such report was that
of the plaintiff's treating physician, Dr. Joyce Goldenberg, which
revealed the existence of a significant limitation in the plaintiff's
right knee flexion (see Guerrero v Bernstein, 57 AD3d 845; Mendola v Demetres, 212
AD2d 515). The other was an operative report of the plaintiff's
treating orthopedic surgeon, Dr. Richard Seldes, which revealed, inter
alia, the existence of a tear in the posterior horn of the medial
meniscus in the right knee. Since the defendants did not meet their
prima facie burden, it is unnecessary to determine whether the papers
submitted by the plaintiff in opposition were sufficient to raise a
triable issue of fact (see Guerrero v Bernstein, 57 AD3d at 845; Mendola v Demetres, 212 AD2d at 515).

CPLR R. 3025(b) No amendment without factual basis

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

DeLouise v S.K.I. Wholesale Beer Corp, 2010 NY Slip Op 05984 (App. Div., 2nd, 2010)

The plaintiff also sought leave to amend the complaint to assert the
additional causes of action of negligent entrustment, negligent hiring,
and negligent retention. Although CPLR 3025(b) provides that leave to
serve an amended pleading should be freely given (see AYW Networks v
Teleport Communications Group, 309 AD2d 724; Charleson v City of
Long Beach, 297 AD2d 777; Holchendler v We Transp., 292 AD2d
568), leave to amend should be denied where the proposed amendment is
palpably insufficient as a matter of law or is totally devoid of merit (see Morton v Brookhaven Mem. Hosp., 32 AD3d 381;
Thone v Crown Equip. Corp., 27 AD3d 723).
Here, the Supreme Court improvidently exercised its discretion in
granting the plaintiff leave to amend his complaint since the
plaintiff's motion papers were completely devoid of any factual basis
for the proposed amendments.

The bold is mine.

CPLR R. 3212 and R. 3116: proof, inadmissible at trial, but sufficient to defeat SJ

CPLR R. 3116 Signing
deposition; physical preparation; copies

(a) Signing.

CPLR R. 3212
Motion for summary judgment

Moffett v Gerardi, 2010 NY Slip Op 05990 (App. Div., 2nd, 2010)

"A certificate of acknowledgment attached to an instrument such as a
deed raises a presumption of due execution, which presumption, in a case
such as this, can be rebutted only after being weighed against any
evidence adduced to show that the subject instrument was not duly
executed" (Son Fong Lum v Antonelli, 102 AD2d 258, 260-261, affd
64 NY2d 1158; see Beshara [*2]v
Beshara, 51 AD3d 837, 838). Here, the defendant made a prima
facie showing of entitlement to judgment as a matter of law by providing
a copy of the notarized January 1998 deed which included a certificate
of acknowledgment (see Beshara v Beshara, 51 AD3d 837; Elder v Elder, 2 AD3d 671).

In opposition, the plaintiff submitted his own affidavit
contesting the signature on the deed, the deposition transcript of the
notary public who purportedly notarized the deed, and an unsworn report
of a handwriting expert. The plaintiff failed to establish that he had
sent the deposition transcript to the notary public for review pursuant
to CPLR 3116(a), thereby rendering the transcript inadmissible at trial (see Marmer v IF USA Express, Inc., 73 AD3d 868;
Martinez v 123-16 Liberty Ave. Realty Corp., 47
AD3d 901, 902; McDonald v Mauss, 38 AD3d 727, 728; Pina v Flik Intl. Corp., 25 AD3d 772; Scotto v Marra, 23 AD3d 543; Santos v Intown Assoc., 17 AD3d 564).
However, this failure did not preclude the Supreme Court from
considering the transcript in opposition to the motion for summary
judgment (see Friends of Animals v Associated Fur Mfrs., 46 NY2d
1065, 1068; Phillips v Kantor & Co., 31 NY2d 307; Franklin v 2 Guys From Long Pond, Inc., 50 AD3d
846; Kwi Bong Yi v JNJ Supply Corp., 274 AD2d 453; Silvestri
v Iannone, 261 AD2d 387; Zuilkowski v Sentry Ins., 114 AD2d
453). Generally, when opposing a motion for summary judgment, a party
must submit evidence in admissible form sufficient to raise a triable
issue of fact (see Zuckerman v City of New York, 49 NY2d 557). In
certain circumstances, "proof which might be inadmissible at trial may,
nevertheless, be considered in opposition to a motion for summary
judgment" (Zuilkowski v Sentry Ins., 114 AD2d 453), as long as
the party seeking to use such evidence provides an acceptable excuse for
the failure to tender the evidence in admissible form (see Friends
of Animals v Associates Fur Mfrs., 46 NY2d at 1068; Allstate Ins.
Co. v Keil, 268 AD2d 545), and the inadmissible evidence does not
provide the sole basis for the denial of summary judgment (see
Phillips v Kantor & Co., 31 NY2d 307). 

Here, the plaintiff's excuse that it was his understanding that the
defendant, as the party who had noticed the deposition and hired the
court reporter, was forwarding a copy of the deposition transcript to
the notary public for review, was reasonable. Moreover, the notary
public's deposition testimony that the deed was not notarized in the
usual manner in which he notarized documents and, as a result, that he
would not testify that the signature on the deed belonged to the
plaintiff, along with the plaintiff's own affidavit that he did not sign
the subject deed, rebutted the presumption of the deed's validity as
created by the certificate of acknowledgment (see Alvarez v Prospect
Hosp., 68 NY2d 320; Hoffman v Kraus, 260 AD2d 435).
Accordingly, since there is a triable issue of fact, the Supreme Court,
upon reargument, should have adhered to its prior determination denying
the defendant's motion for summary judgment dismissing the complaint.

The bold and underline are mine.

No specific form of oath required in New York: CPLR § 2309

CPLR §
2309 Oaths and affirmations
(b)
Form: An oath or affirmation shall be administered in a form
calculated to awaken the conscience and impress the mind of the person
taking it in accordance with his religious or ethical beliefs.

Furtow v Jenstro Enters., Inc., 2010 NY Slip Op 05987 (App. Div., 2nd, 2010)

Contrary to the Supreme Court's determination, the affidavit submitted
by the defendant Allen Yam Ching was in admissible form and should have
been considered by the court in opposition to the plaintiff's motion for
summary judgment. "There is no specific form of oath required in this
State, other than that it be calculated to awaken the conscience and
impress the mind of the person taking it in accordance with his or her
religious or ethical beliefs" (Feinman v Mennan Oil Co., 248 AD2d
503, 504; see CPLR 2309[b]). "In addition, a notary, in the
absence of a showing to the contrary, is presumed to have acted within
his or her jurisdiction and to have carried out the duties required by
law" (Feinman v Mennan Oil Co., 248 AD2d at 504; see Collins v
AA Truck Renting Corp., 209 AD2d 363). Here, Ching submitted an
affidavit which recited that he was "duly sworn" and contained a jurat
stating that the affidavit was "sworn to before" a notary public, who
signed and stamped the document. On the record presented here, the form
of the affidavit was adequate (see Sirico v F.G.G. Prods., Inc., 71 AD3d 429;
Sparaco v Sparaco, 309 AD2d 1029, 1030; Feinman v Mennan Oil
Co., 248 AD2d at 504; Collins v AA Truck Renting Corp., 209
AD2d at 363).

This is the bare minimum.  The bold is mine.

Collateral Estoppel, Res Judicata, and permissible inconsistent verdicts

Wisell v
Indo-Med Commodities, Inc., 2010 NY Slip Op 05388 (App. Div., 2nd,
2010)

 

In this case, the plaintiff's demand for a jury trial on all
issues was, in part, improperly stricken, and, on a prior appeal, this Court
reversed and directed a joint trial of legal and equitable claims, with a jury
to determine the legal claims and the court to determine the equitable claims (see Wisell v Indo-Med Commodities, 303
AD2d 749, 750). However, at the time of this Court's decision and order in
March 2003, the parties were in the midst of a nonjury trial. The parties, in a so-ordered stipulation,
agreed to allow the nonjury trial to proceed, with "the jury trial with
respect to the plaintiff's claims and the legal counterclaims" commencing
after the completion of the nonjury trial. Although the stipulation provided
that "the commencement of the jury trial need not await the [trial]
Court's decision" with respect to the defendants' equitable counterclaims,
unless a directed verdict was awarded to "any party," or there was a
"further Decision or finding of [the trial] Court," the parties did,
in fact, wait until after a decision of the trial court was rendered, and
judgment was entered on that decision.

 

Before the jury trial could commence, the defendants moved to
dismiss the complaint based upon the doctrines of res judicata and collateral
estoppel, claiming that all factual issues were resolved in their favor with
entry of judgment on their counterclaims. The
order appealed from denied the motion on the ground that the stipulation
preserved the plaintiff's right to a jury trial on his complaint, and the
possibility of inconsistent verdicts was contemplated when the Appellate
Division issued its initial decision [*2](see Wisell v Indo-Med Commodities, 303
AD2d 749, 750, citing Mercantile & Gen. Reins. Co. v Colonial
Assur. Co., 82 NY2d 248), and the
parties entered into their stipulation. We affirm.

 

The doctrine of collateral estoppel "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 or those in privity,
whether or not the tribunals or causes of action are the same" (Ryan v New York Tel. Co., 62 NY2d 494,
500; Chiara v Town of New Castle, 61 AD3d 915, 916). Pursuant to the
doctrine of res judicata, a final judgment precludes reconsideration of all
claims which could have or should have been litigated in the prior action or
proceeding against the same party (see
Parker v Blauvelt Volunteer Fire Co., 93 NY2d 343, 347). However, in the instant case, we are not
dealing with findings in a prior action; we are dealing with the same
action. Accordingly, the
affirmative defenses of collateral estoppel and res judicata are inapplicable
to the instant dispute, and the Supreme Court properly denied the defendants'
motion to dismiss the complaint as barred by the doctrines of collateral
estoppel and res judicata.

The bold is mine.

Death of a Party: CPLR § 1015


CPLR
§ 1015 Substitution upon death

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

Stancu v Cheon Hyang Oh, 2010 NY Slip Op 05754 (App. Div. 2nd,
2010)

 

The death of a party divests the
court of jurisdiction to conduct proceedings in an action, the action is stayed
as to him or her pending substitution of a legal representative, and any
determination rendered without such a substitution is generally deemed a
nullity (see CPLR 1015, 1021; Reed v Grossi, 59 AD3d 509, 511; Rumola v Maimonides
Med. Ctr., 37 AD3d 696, 696-697; Lugo v GE Capital Auto Lease, 36 AD3d 409,
410; Singer v Riskin, 32 AD3d 839, 839-840; Giroux v Dunlop Tire Corp., 16 AD3d
1068, 1069; Hicks v Jeffrey, 304 AD2d 618, 618; Faraone v National Academy of
Tel. Arts & Sciences, 296 AD2d 349, 350; Gonzalez v Ford Motor Co., 295
AD2d 474, 475).

Here, the plaintiffs provided no
reason why discovery was required. Accordingly, under the circumstances of this
case, the Supreme Court properly denied the plaintiffs' motion, inter alia, to
vacate the stay of the action imposed pursuant to CPLR 1015 as a consequence of
the decedent's death to the extent of allowing them to conduct discovery to
obtain information necessary to appoint an administrator of the decedent's
estate in the State of New Jersey.

The bold is mine.

Intergalactic Bugs and CPLR R. 3212 and CPLR R. 2221. Happy 4th of July.

Normally, I don’t write anything
special for the 4th of July. 
I’m going to continue that tradition.  I will, however, be doing my civic and patriotic duty:
watching Starship Troopers.  The
number one threat facing the country today is intergalactic bugs.  I, for one, will be prepared.

In the past few days, decisions
have come out from every court but the Appellate Term, Second Department.  Creating a decision that allows an
expert to base her testimony on hypotheticals alone[1]
probably took a lot out of them, so they get a pass for their inactivity.

Today's post will cover the recent
3212 decisions.  I was going to put all of the recent decisions in one
post, but decided that it would take up too much time and space.  And,
nobody would read anything that long.

The last decision also discusses relaxing CPLR R.
2221(e)(2)'s evidence available at the time the original motion was made, requirement, in the interest of justice.  CPLR R.  2221(e) provides:

(e) A motion for leave to renew:

1. shall be identified specifically as such;

2. shall be based upon new facts not offered on the prior motion that would change the prior determination or shall demonstrate that there has been a change in the law that would change the prior determination; and

3. shall contain reasonable justification for the failure to present such facts on the prior motion.

I'm testing out writing my posts in word, so bear with me while I try to figure out the formatting.  From the looks of it, this will be a short lived experiment.

CPLR R. 3212 Summary Judgment

Estate of Marie Merna v Simuro, 2010 NY Slip Op 05725 (App. Div., 2nd,
2010)

As the proponent of the motion for
summary judgment, the bank was required to make a prima facie showing of
entitlement to judgment as a matter of law, tendering sufficient evidence to
eliminate any material issues of fact from the case (see Winegrad v New York Univ. Med. Ctr., 64 NY2d 851, 853; Matin v Chase
Manhattan Bank, 10 AD3d 447, 448). The bank failed to meet
this burden, as the evidence it submitted was insufficient to eliminate any triable
issues of fact as to whether the relevant account statements were "made
available" to the plaintiff before January 5, 2005, the date on which she
discovered the forgeries (UCC 4-406[4]; see
Matin v Chase Manhattan Bank, 10 AD3d at 448-449; Robinson Motor Xpress,
Inc. v HSBC Bank, USA, 37 AD3d 117).

***

However, the Supreme Court
improperly denied that branch of the bank's motion which was to strike the
plaintiff's demand for a jury trial[2]
(see generally Brian Wallach Agency v
Bank of N.Y., 75 AD2d 878; Massry
Importing Co. v Security Natl. Bank, 49 AD2d 750; David v Manufacturers Hanover Trust Co., 59 Misc 2d 248).

Espada v City of New York, 2010 NY Slip Op 05724 (App. Div., 2nd,
2010)

Contrary to the plaintiff's
contention, the defendants' motion was not premature, as the plaintiff failed
to offer an evidentiary basis to suggest that discovery may lead to relevant
evidence or that facts essential to opposing the motion were exclusively within
the defendants' knowledge and control (see
CPLR 3212[f]; Hill v Ackall, 71
AD3d 829; Kimyagarov v Nixon
Taxi Corp., 45 AD3d 736, 737).

Evangelista v Kambanis, 2010 NY Slip Op 05726 (App. Div., 2nd,
2010)

"A party opposing summary
judgment is entitled to obtain further discovery when it appears that facts
supporting the opposing party's position may exist but cannot then be
stated" (Matter of Fasciglione,
73 AD3d 769, 769; see CPLR 3212[f]; Rodriguez v DeStefano, 72 AD3d 926).
Here, at the time the defendant landowners moved for summary judgment, they had
not been deposed. Moreover, it appears that information concerning whether they
created the alleged dangerous condition on the sidewalk abutting their property
which caused the plaintiff's accident, or enjoyed a special use of the sidewalk
which gave rise to the dangerous condition, may be within their exclusive
knowledge (see Adler v City of New York,
52 AD3d 549, 549-550). Under these circumstances, the Supreme Court did not
improvidently exercise its discretion in denying, as premature, the defendants'
motion for summary judgment dismissing the complaint (see Matter of Fasciglione, 73 AD3d at 769; Gruenfeld v City of New Rochelle, 72 AD3d 1025; Rodriguez v DeStefano, 72 AD3d at 926; Harvey v Nealis, 61 AD3d 935, 936).

Atiencia v Mbbco Ii, LLC, 2010 NY Slip Op 05872 (App. Div., 1st,
2010)

A court, in the course of deciding
a motion, is empowered to search the record and award summary judgment to a
nonmoving party (see CPLR 3212(b); Lennard v Khan, 69
AD3d 812, 814 [2010]). However, with respect to the June 2009
order, the motion court erred in dismissing the Labor Law § 241(6) claim
against Farrell, as that claim was not placed before the court on plaintiffs'
summary judgment motion (see Dunham v
Hilco Constr. Co., 89 NY2d 425, 429-430 [1996]).

Regarding the October 2009 order,
the motion court should have granted the motions to renew. Although the newly
submitted evidence was available at the time of the prior motion, the court
"ha[d] discretion to relax this requirement and to grant such a motion in
the interest of justice" (Mejia v
Nanni, 307 AD2d 870, 871 [2003]). Not only did plaintiffs and MBBCO offer
reasonable justification for failing to submit the evidence submitted on the motion,
but the new facts submitted do, in fact, change the prior determination (CPLR
2221[e][2]).

[1] I'm referring to Urban
Radiology, P.C. v Tri-State Consumer Ins. Co., 2010 NY Slip Op 50987(U)
(App. Term, 2nd, 11th & 13th Jud. Dists. 2010).  I have a long
post about it over at the No-Fault blog.  Here is a snippet of the
decision.

 

Defendant
was not attempting to prove that Rafailova was injured as documented in her
medical records, or that she was treated as set forth in those records.
Instead, defendant’s peer review doctor simply opined that, assuming the facts set forth in Rafailova’s records
were true, the treatment allegedly provided was not medically necessary.
Therefore, as defendant was not using the underlying medical records for their
truth, such records were not being
used for a hearsay purpose (see e.g. Dawson v Raimon Realty Corp., 303
AD2d 708 [2003]; Splawn v Lextaj Corp., 197 AD2d 479 [1993]). This is
distinguishable from a situation in which a medical expert relies upon medical
records to establish the fact of an injury (see e.g. Hambsch v New York City
Tr. Auth., 63 NY2d 723 [1984]; Wagman v Bradshaw, 292 AD2d 84 [2002]).
Consequently, plaintiff’s argument that defendant failed to establish the
reliability of the underlying medical records in support of its claim that the
treatment provided was not medically necessary is irrelevant.  (Emphasis Added)

 

[2] This
footnote is mine. In the cases the Appellate Division cites, there was a prior agreement/contract waiving the right to a jury.  Compare,
just for fun, Haber v Cohen, 2010 NY Slip Op 05730 (App. Div., 2nd, 2010)(“Contrary
to the defendants' contention, the amendment of their counterclaims to withdraw
their requests for equitable relief did not revive their right to a trial by
jury”)(Citations omitted).

Just a reminder

Goldstein v Guida, 2010 NY Slip Op 05513 (App. Div, 2nd, 2010)(Accordingly, under the circumstances of this case, the Supreme Court
properly held Guida liable for the damages incurred by the plaintiff as a
result of the conversion of the chairs (see Ingram v Michael and Jr.
Auto Repair, 148 AD2d 324, 325)).

Haracz v Cee Jay, Inc., 2010 NY Slip Op 05514 (App. Div., 2nd, 2010)(Where, as here, the movant fails to sustain its initial burden of making
a prima facie showing of entitlement to judgment as a matter of law,
summary judgment should be denied regardless of the sufficiency of the
opposing papers (see Ayotte v Gervasio, 81 NY2d 1062, 1063; Alvarez
v Prospect Hosp., 68 NY2d at 324)).

No Unfettered Disclosure; CPLR § 3101

CPLR § 3101 Scope of disclosure

Foster v Herbert Slepoy Corp., 2010 NY Slip Op 05509 (App. Div., 2nd, 2010)

CPLR 3101(a) requires "full disclosure of all matter material and
necessary in the prosecution or defense of an action." "The phrase
material and necessary' should be interpreted liberally to require
disclosure, upon request, of any facts bearing on the controversy which
will assist preparation for trial by sharpening the issues and reducing
delay and prolixity. The test is one of usefulness and reason'" (Friel
v Papa, 56 AD3d 607, 608, quoting Allen v Crowell-Collier Publ.
Co., 21 NY2d 403, 406). A party, however, does not have the right to
"uncontrolled and unfettered disclosure" (Gilman & Ciocia, Inc. v
Walsh, 45 AD3d 531, 531; see Barouh Eaton Allen Corp. v
International Bus. Machs. Corp., 76 AD2d 873). " It is incumbent on
the party seeking disclosure to demonstrate that the method of discovery
sought will result in the disclosure of relevant evidence or is
reasonably calculated to lead to the discovery of information bearing on
the claims'" (Vyas v Campbell, 4 AD3d 417, 418, quoting Crazytown
Furniture v Brooklyn Union Gas Co., 150 AD2d 420, 421).

"The Supreme Court has broad discretion in the supervision of
discovery, and its determinations should not be disturbed on appeal
unless improvidently made" (Casabona v Huntington Union Free School
Dist., 29 AD3d 723, 723; see Andon v 302-304 Mott St. Assoc., 94
NY2d 740, 746; Milbrandt & Co., Inc. v Griffin, 19 AD3d 663;
Provident Life & Cas. Ins. Co. v Brittenham, 284 AD2d 518).
Here, the Supreme Court providently exercised its discretion in
concluding, inter alia, that the additional discovery sought by the
appellants was neither material nor necessary to the prosecution or
defense of any claim (see CPLR 3101[a]; Casabona v Huntington
Union Free School Dist., 29 AD3d 723; Vyas v Campbell, 4 AD3d
417; Palermo Mason Constr. v Aark Holding Corp., 300 AD2d 460).

The bold is mine.

[updated 6/27/10:  I added links to Vyas and Crazytown].