Category: [App Div 2d Dept]

CPLR R. 3043 Bill of particulars in personal injury actions

Mahr v Perry, 2010 NY Slip Op 05369 (App. Div., 2nd, 2010)

The appellants' objections to the plaintiffs' responses to demands number 4, 14, 18, and 19 are without merit, since none of the information sought in those demands is expressly authorized under CPLR 3043 (see Feraco v Long Is. Jewish-Hillside Med. Ctr., 97 AD2d 498; Williams v Shapiro, 67 AD2d 706; Johnson v Charow, 63 AD2d 668).

The appellants' objections to the plaintiffs' responses to demands number 3, 8, and 10 are also without merit. The plaintiffs properly objected to each of these demands, as they improperly sought evidentiary material (see Toth v Bloshinsky, 39 AD3d 848, 849; Benn v O'Daly, 202 AD2d at 465). Demand 8 also was improper on the ground that it sought to compel the plaintiffs to "set forth the manner in which the physician failed to act in accordance with good and accepted medical practice," which is knowledge "a physician is chargeable with knowing" (Toth v Bloshinsky, 39 AD3d at 849; see Dellaglio v Paul, 250 AD2d 806).

The bold is mine.

Katz v Marra, 2010 NY Slip Op 04957 (App. Div., 2nd 2010)

Pursuant to CPLR 5015(a), "[t]he court which rendered a judgment or
order may relieve a party from it upon such terms as may be just." This
statute sets forth certain grounds for vacatur, including excusable
default, newly-discovered evidence, fraud, misrepresentation, and lack
of jurisdiction. As recognized by the Court of Appeals, the drafters of
CPLR 5015 did not envision that this statute would provide an exhaustive
list of the grounds for vacatur (see Woodson v Mendon Leasing Corp.,
100 NY2d 62, 68). Instead, a court retains "its discretionary power
to vacate its own judgment for sufficient reason and in the interests
of substantial justice'" (Goldman v Cotter, 10 AD3d 289, 293, quoting Woodson
v Mendon Leasing Corp., 100 NY2d at 68; see Ladd v Stevenson, 112
NY 325, 332). However, "[a] court's inherent power to exercise control
over its judgment is not plenary, and should be resorted to only to
relieve a party from judgments taken through [fraud,] mistake,
inadvertence, surprise or excusable neglect" (Matter of McKenna v
County of Nassau Off. of County Attorney, 61 NY2d 739, 742 [internal
quotation marks omitted]; see Long Is. Light Co. v Century Indem. Co., 52
AD3d 383, 384; Quinn v Guerra, 26 AD3d 872, 873).

***

Here, the defendant failed to establish grounds warranting relief under
CPLR 5015(a)(1)

***

In our view, this case does not warrant the invocation of a court's
inherent power to vacate its orders and judgment in the interest of
substantial justice. Notwithstanding the dissent's characterization,
there is nothing unique or unusual about this case. This Court has
previously found that claims of financial distress are not sufficient to
justify the exercise of the court's inherent discretionary power to
vacate its own judgment in the interests of substantial justice (see Matter of Dayton Towers Corp. v Gethers, 24
AD3d 663, 664). Simply stated, this is not an appropriate case in
which to exercise the broad equity power of a court to vacate its own
orders and judgment.
We note that the cases cited by the dissent for the proposition
that vacatur is warranted in the interest of substantial justice are
inapposite and/or distinguishable. For instance, in Ruben v American
and Foreign Ins. Co. (185 AD2d 63), the court vacated a judgment,
upon the "joint" motion and consent of the parties. Other cases relied
upon by the dissent, such as Government Empls. Ins. Co. v Employment
Commercial Union Ins. Co. (62 AD2d 123) and Soggs v Crocco (247
AD2d 887), did not involve a motion to vacate an order or judgment
entered upon default.

In May of 2009, I posted a case where the Appellate Division, Third Department, found facts sufficient to warrant vacatur in the interest of justice: Kostun
v Gower, 61 AD3d 1307 (App. Div., 3rd, 2009).  That case was also interesting because of FN 1.  In June of 2009, I posted a Appellate Division, First Department, case, where the court found sufficient facts: Diane
v Ricale Taxi, Inc., 2009 NY Slip Op 05680 (App. Div.,
1st, 2009).

CPLR R. 320 Defendant's appearance

Goonan v New York City Tr. Auth., 2010 NY Slip Op 04742 (App. Div., 2nd, 2010)

A plaintiff may seek leave to enter a default judgment when a defendant,
among other things, has failed to appear within the time required (see
CPLR 3215[a]; Okeke v Ewool, 66 AD3d 978, 979). A defendant
appears, inter alia, by serving an answer upon the plaintiff (see
CPLR 320[a]; Cerrito v Galioto, 216 AD2d 265, 266; cf. Ahmad v
Aniolowiski, 28 AD3d 692, 693). Contrary to the plaintiff's
contention, there is no statutory or other requirement that an answer,
timely served upon a plaintiff, must also be filed with the clerk of the
relevant court in order for a defendant to appear in the action. Here,
the defendant appeared in the action by timely serving its answer upon
the plaintiff (see CPLR 320[a]; Siegel, NY Prac § 110, at 199
[4th ed]) and, therefore, there was no default.

CPLR R. 3212
Motion for summary judgment
(f)
Facts unavailable to opposing party

Essex Ins. Co. v Michael Cunningham Carpentry, 2010 NY Slip Op 04732 (App. Div., 2nd, 2010)

Andreassen's contention that the motion for summary judgment was
premature is without merit. It failed to offer any evidentiary basis to
suggest that discovery may lead to relevant evidence. The hope and
speculation that evidence sufficient to defeat the motion might be
uncovered during discovery was an insufficient basis to deny the motion (see Peerless Ins. Co. v Micro Fibertek, Inc., 67
AD3d 978, 979; Tedesco v Tedesco, 64 AD3d 583, 584; Conte v Frelen Assoc., LLC, 51 AD3d 620,
621).

There are plenty of cases on this issue, but I like the brevity of this one.

Just after I read this one, I found another.

Family-Friendly Media, Inc. v Recorder Tel. Network, 2010 NY Slip Op 04735 (App. Div., 2nd, 2010)

CPLR 3212(f) permits a party opposing summary judgment to obtain further
discovery when it appears that facts supporting the position of the
opposing party exist but cannot be stated (see Aurora Loan Servs.,
LLC v LaMattina & Assoc., Inc., 59 AD3d 578; Juseinoski v New
York Hosp. Med. Ctr. of Queens, 29 AD3d 636, 637). Under the
circumstances of this case, the Supreme Court properly denied that
branch of the plaintiff's motion which was for summary judgment on the
complaint as premature, without prejudice to renew (see Matter of
Fasciglione,AD3d, 2010 NY Slip Op 03926 [2d Dept 2010]; Baron v
Incorporated Vil. of Freeport, 143 AD2d [*2]792,
792-793).

And one from the First Department.

Montalvo v Chiaramonte, 2010 NY Slip Op 04707 (App. Div., 1st, 2010)

Neither plaintiffs nor Chiaramonte submitted any affidavits or evidence
to show that "facts essential to justify opposition [to the Tarts'
motion] may exist but cannot then be stated" (CPLR 3212[f]). Nor did
they ever challenge the motion court's finding that the "Tart vehicle
never came into contact with the decedent."

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

CPLR R. 3211 Motion to dismiss
(e)
Number,
time and waiver of objections; motion to plead over

Complete Mgt., Inc. v Rubenstein, 2010 NY Slip Op 04726 (App. Div., 2nd, 2010)

However, the Supreme Court improvidently exercised its discretion in
denying that branch of the defendants' motion which was for leave to
amend their answer to assert the affirmative defense of lack of capacity
to sue. Although the defendants waived this defense by failing to raise
it in their answer or in a motion to dismiss made prior to answering (see
CPLR 3211[a][3];[e]; FBB Asset Mgrs. v Freund, 2 AD3d 573, 574; Harte
v Richmond County Sav. Bank, 224 AD2d 585, 586), " defenses waived
under CPLR 3211(e) can nevertheless be interposed in an answer amended
by leave of court pursuant to CPLR 3025(b) so long as the amendment does
not cause the other party prejudice or surprise resulting directly from
the delay'" (Nunez v Mousouras, 21 AD3d 355, 356, quoting Endicott
Johnson Corp. v Konik Indus., 249 AD2d 744, 744). Under the
circumstances of this case, the granting of leave to amend would not
have resulted in prejudice or surprise to the plaintiff, and the
proposed amendment was neither palpably insufficient nor totally devoid
of merit (see Bajanov v Grossman, 36 AD3d 572, 573; Nunez
v Mousouras, 21 AD3d at 356).

Compare with

Sackett v Konigsberg, 2010 NY Slip Op 04765 (App. Div., 2nd, 2010)

Contrary to the plaintiff's contention, the Supreme Court properly
granted the defendants' motion to strike the amended complaint based
upon her failure to comply with CPLR 3025. The record indicates that the
plaintiff served her amended complaint well beyond the period within
which an amended pleading may be served as of right (see CPLR
3025[a]) without first obtaining leave of the court or the stipulation
of the parties (see Nikolic v Federation Empl. & Guidance Serv.,
Inc., 18 AD3d 522, 524).

The appeal from the order dated March 17, 2008, must be dismissed
as abandoned, as the plaintiff does not seek in her brief reversal or
modification of any portion of the order (see Sirma v Beach, 59
AD3d 611, 614; Bibas v Bibas, 58 AD3d 586, 587).

CPLR R. 3212(a)

Brewi-Bijoux v City of New York, 2010 NY Slip Op 04535 (App. Div., 2nd, 2010)

Initially, we note that while the defendants characterized their motion as one for in limine relief to dismiss the complaint for failure to establish a prima facie case, the record reveals that the motion actually was one for summary judgment. "[A] motion in limine is an inappropriate substitute for a motion for summary judgment" (Rondout Elec. v Dover Union Free School Dist., 304 AD2d 808, 810-811; see Rivera v City of New York, 306 AD2d 456, 457). Moreover, the Supreme Court improvidently exercised its discretion in considering this late motion since the defendants failed to offer any excuse for their failure to timely move for summary judgment (see CPLR 3212[a]; Brill v City of New York, 2 NY3d 648; Nobile v Town of Hempstead, 17 AD3d 647; Clermont v Hillsdale Indus., 6 AD3d 376, 377). Such failure warrants denial of the motion without consideration of the merits thereof (see Miceli v State Farm Mut. Auto. Ins. Co., 3 NY3d 725; Brill v City of New York, 306 AD2d 456). Accordingly, we reinstate the complaint.

[Edit 6/4] found another one

West Broadway Funding Assoc. v Friedman, 2010 NY Slip Op 04781 (App. Div., 2nd, 2010)