Category: [App Div 2d Dept]

Like a bullet to the head. CPLR R. 3211(a)(1). What constitutes “documentary evidence.”

Sometimes procedure serves as a minor irritant, preventing immediate relief.  Other times it works like a baseball bat to your knees, preventing you from getting from point A to point B in your usual and customary fashion.  And in others, it’s a bullet to the head, preventing you from going anywhere at all.

I was going to use that introduction in an article, but it was vetoed.  Perhaps rightfully so.  But I really want to use it.

This decision contains a great discussion of 3211(a)(1), particularly what constitutes "documentary evidence."  CPLR 3211(a)(1), much like (a)(7) is used far too often under circumstances that don't suit it.1  Both are used as a way to get a pre-answer motion to dismiss in, where the facts don't quite fit.  Even though it might get the motion through the gate, it doesn't mean that it will get to the finish line.  It would make more sense to use it to get the motion, in but to request that it be converted. Other times, they are used as a way around 3212(a)'s 120 day time limit.

CPLR R. 3211(a)(1)

Fontanetta v John Doe 1, 2010 NY Slip Op 02743 (App. Div., 2nd, 2010)

 

On November 30, 2007, the defendants moved, inter alia, to dismiss the complaint pursuant to CPLR 3211(a)(1) based on "documentary evidence." They argued, among other things, that the plaintiff's privileges were terminated after he "engaged in a dangerous trend of substandard patient care," and that they were immunized from liability by the HCQIA and New York State Public Health Law § 2805-m(3) because the Hospital's decision to terminate the plaintiff 's privileges "was reasonable and in furtherance of quality health care." In support of their motion, the defendants submitted the following items, asserting that they constituted "documentary evidence" within the intendment of CPLR 3211(a)(1): a completely redacted Quality Improvement Morbidity Report (written conclusions of the CQI Committee reviews); a memorandum from Monica Santoro of the Hospital's Risk Management Department to Barbara Kohart-Kleine, a Vice President of the Hospital administration, regarding the plaintiff's cases that were being reviewed by that Department; five sets of minutes from Quality Improvement Meetings (the minutes of the CQI Committee meetings); a report from New York Patient Occurrence Report and Tracking System; a report from NYPORTS.net; excerpts of testimony from Medical Staff Hearings; five excerpts of minutes from the Ad Hoc Committee Hearings; attendance sheets from CQI Committee meetings; a chart review; a copy of an e-mail correspondence between Barbara Vallone, R.N., and Dr. Teplitz discussing the plaintiff's failure to follow Hospital protocol; a transcript of the proceedings held before the Appellate Review Board; minutes from an Executive Committee Meeting; minutes from a Board of Directors' Executive Session; minutes from the Appellate Review Committee Meeting; and eight letters either from or to the plaintiff, Dr. DiMaio, or the Hospital administration discussing the plaintiff's cases, his failure to follow Hospital protocol, or his suspension (hereinafter collectively the defendants' printed materials).

Both before the Supreme Court and at oral argument in this Court, the defendants limited the scope of that branch of their motion which was to dismiss the complaint to one pursuant to CPLR 3211(a)(1), relying solely on the above-mentioned alleged "documentary evidence," and declined to rely on any other subdivision of CPLR 3211(a). Nor did they argue that their application should be treated as a motion for summary judgment under CPLR 3211(c). In its order entered April 2, 2008, the Supreme Court denied that branch of the defendants' motion which was to dismiss the complaint, finding that the proof relied upon by them was not "documentary evidence." We agree.

Discussion

A motion to dismiss pursuant to CPLR 3211(a)(1) will be granted only if the "documentary evidence resolves all factual issues as a matter of law, and conclusively disposes of the plaintiff's claim" (Fortis Fin. Servs. v Fimat Futures USA, 290 AD2d 383, 383; see Leon v Martinez, 84 NY2d 83, 88; Martin v New York Hosp. Med. Ctr. of Queens, 34 AD3d 650; Berger v Temple Beth-El of Great Neck, 303 AD2d 346, 347). "[I]f the court does not find [their] submissions documentary', it will have to deny the motion" (Siegel, Practice Commentaries, [*4]McKinney's Cons Laws of NY, Book 7B, CPLR C3211:10 at 22). Since the printed materials relied on by the defendants do not qualify as such,[FN2] we affirm the denial of that branch of the defendants' motion which was to dismiss the complaint pursuant to CPLR 3211(a)(1).

The History and Development of CPLR 3211(a)(1)

CPLR 3211, including subdivision (a)(1),[FN3] appears to have had its genesis in the 1957 First Preliminary Report of the Advisory Committee on Practice and Procedure (1st Rep Leg Doc [1957] No. 6[b] [hereinafter the Report]). According to that Report, the purpose of CPLR 3211(a)(5) was to cover the most common affirmative defenses founded upon documentary evidence, specifically, estoppel, arbitration and award, and discharge in bankruptcy, whereas 3211(a)(1) was enacted to "cover all others that may arise, as for example, a written modification or any defense based on the terms of a written contract" (id. at 85). To some extent, "documentary evidence" is a "fuzzy" term, and what is documentary evidence for one purpose, might not be documentary evidence for another.[FN4]

As Professor Siegel has noted in his Commentary to CPLR 3211, there is "a paucity of case law" as to what is considered " documentary' under [CPLR 3211(a)(1)]" (Siegel, Practice Commentaries, McKinney's Cons Laws of NY, Book 7B, CPLR C3211:10, at 21-22). From the cases that exist, it is clear that judicial records, as well as documents reflecting out-of-court transactions such as mortgages, deeds, contracts, and any other papers, the contents of which are "essentially undeniable," would qualify as "documentary evidence" in the proper case (id.; see 2 NY Prac., Com. Litig. in New York State Courts § 7:60, 2d ed). For example, in Matter of Casamassima v Casamassima (30 AD3d 596), this Court held that a trust agreement qualified as "documentary evidence" in a dispute between co-trustees.

In Bronxville Knolls v Webster Town Ctr. Partnership (221 AD2d 248), the Appellate Division, First Department, found that an integrated mortgage and note, which unambiguously made the property itself the plaintiffs' sole recourse, constituted "documentary evidence." In Crepin v Fogarty (59 AD3d 837, 839), the Appellate Division, Third Department, found that a deed qualified as "documentary evidence" where it conclusively established the validity of the disputed easement.

Along the same lines, in 150 Broadway N.Y. Assoc., L.P. v Bodner (14 AD3d 1, 7), the Appellate Division, First Department, found that a lease which unambiguously contradicted the allegations supporting the plaintiff's cause of action alleging breach of contract constituted "documentary evidence" under CPLR 3211(a)(1). The Court noted that this lease represented a clear and complete written agreement between sophisticated, counseled business people negotiating at arms length (id. at 8). Relying on the same reasoning, the Appellate Division, Third Department, in Ozdemir v Caithness Corp. (285 AD2d 961), held that a contract constituted "documentary evidence" in a dispute regarding the payment of a finder's fee.

On the other hand, the case law is somewhat more abundant as to what is not "documentary evidence." As this Court held in Berger v Temple Beth-El of Great Neck (303 AD2d 346, 347), affidavits are not documentary evidence (to the same effect, see Tsimerman v Janoff, 40 AD3d 242 [1st Dept], and Siegel, Practice Commentaries, McKinney's Cons Laws of NY, Book 7B, CPLR C3211.10). In Weil, Gotshal & Manges, LLP v Fashion Boutique of Short Hills, Inc. (10 AD3d 267, 271), the Appellate Division, First Department, reversed the trial court's dismissal [*5]pursuant to CPLR 3211(a)(1), finding that e-mails and deposition and trial testimony were not the types of documents contemplated by the Legislature when it enacted this provision.

In Frenchman v Queller, Fisher, Dienst, Serrins, Washor & Kool, LLP (24 Misc 3d 486, 495 n 2), the Supreme Court, New York County, held that affidavits and letters did not constitute documentary evidence under CPLR 3211(a)(1) so as to prove that a lawyer-client relationship had been terminated. Also, in Holman v City of New York (19 Misc 3d 600, 602), the Supreme Court, Kings County, found that medical records containing the notes of a doctor were not "documentary evidence," as they raised issues of credibility that are for a jury to decide.

Similarly, in Webster Estate of Webster v State of New York (2003 NY Slip Op 50590[U] *5), the Court of Claims held that records maintained by the New York State and United States Departments of Transportation, which provided detailed information about the railroad crossing at issue, were not "documents" within the meaning of CPLR 3211(a)(1). The court reasoned that those records contain information in a summary form and, thus, are not "essentially undeniable."

In sum, to be considered "documentary," evidence must be unambiguous and of undisputed authenticity (see Siegel, Practice Commentaries, McKinney's Cons Laws of NY, Book 7B, CPLR C3211:10, at 21-22).

It must be pointed out that some of the confusion as to what constitutes documentary evidence pursuant to CPLR 3211(a)(1) stems from the fact that various courts appear to refer to any printed materials as "documentary evidence," particularly in cases not involving CPLR 3211(a)(1). For example, in Gray v South Colonie Cent. School Dist. (64 AD3d 1125), the Appellate Division, Third Department, referred to deposition testimony as "documentary evidence" in discussing a motion for summary judgment. In addressing a motion to change venue in Garced v Clinton Arms Assoc. (58 AD3d 506, 509), the Appellate Division, First Department, referred to affidavits as "documentary evidence." However, it is clear that affidavits and deposition testimony are not "documentary evidence" within the intendment of a CPLR 3211(a)(1) motion to dismiss.

The Instant Motion

The essence of the defendants' contentions, both in their briefs and at oral argument, is the following: first, that their (alleged) "documentary evidence," i.e., the defendants' printed materials, demonstrates that a peer review process (as defined by the HCQIA) took place; second, a review of the complaint shows that the claims are all based on the allegedly wrongful termination of the hospital privileges of the individual plaintiff for not providing quality medical care; and, third, under the HCQIA, the defendants have a presumption of immunity for claims resulting from their participation in a peer review process. They maintain that this established the necessary prerequisites for the presumption to apply, and the burden has, therefore, shifted to the plaintiff to demonstrate why the complaint should not be dismissed or, at least, to show the existence of a factual question on that issue. The defendants argue that the plaintiff did not make that showing. Thus, based on the printed materials the defendants submitted, they were entitled to dismissal of the complaint.

We reject the defendants' position. Their printed materials (with the above-noted possible exception of the clearly insufficient attendance reports) can best be characterized as letters, summaries, opinions, and/or conclusions of the defendants and/or the Hospital's agents and employees. They clearly do not reflect an out-of-court transaction and are not "essentially undeniable" (see Siegel, Practice Commentaries, McKinney's Cons Law of NY, Book 7B, CPLR C3211:10 at 22). Thus, they are not "documentary evidence" within the intendment of CPLR 3211(a)(1).

Since the defendants' printed materials were not "documentary evidence" and they made this motion exclusively under CPLR 3211(a)(1), their submissions were insufficient as a matter of law to grant their motion. In light of that determination, we need not address the parties' remaining contentions.

We also reject the defendants' position at oral argument, i.e., that the policy considerations underlying the immunity granted to them by the HCQIA mandate that this matter be decided by their 3211(a)(1) motion to dismiss, without requiring them to wait and make a summary judgment motion. [*6]

Pursuant to CPLR 3211(c),[FN5] a party can have its motion treated as one for summary judgment (even prior to joinder) either by charting a summary judgment course or by requesting such treatment. Thus, had the defendants truly desired an expedited determination, they could have first moved to dismiss pursuant to CPLR 3211(a) and then requested that the court convert that motion to one for summary judgment under CPLR 3211(c) prior to serving an answer, since all of the papers they chose to rely on were available prior to the commencement of this action (see Mihlovan v Grozavu, 72 NY2d 506, 508; Yule v New York Chiropractic Coll., 43 AD3d 540, 541; Bowes v Healy, 40 AD3d 566; Love v Morrow & Co., 193 AD2d 586). Alternatively, the defendants could have answered and then moved for summary judgment pursuant to CPLR 3212 without waiting for any discovery.

Instead, they chose this narrowly circumscribed and focused motion pursuant to CPLR 3211(a)(1), and thereby charted their own course. As such, they should not be heard to complain about the consequences thereof (see Nishman v De Marco, 62 NY2d 926, 929; Nissequogue Boat Club v State of New York, 14 AD3d 542, 544-545; Manning v Brookhaven Mem. Hosp. Med. Ctr., 11 AD3d 518, 522).

The bold is mine.

——

1.  You see a lot of these motions in no-fault.  Judge's are starting to see that 3211 is not the catch-all defendant's would make it out to be. See VIT Acupuncture, P.C. v State Farm Auto. Ins. Co., 2010 NY Slip Op 51560(U) (Civ Ct City NY, Kings County).

The CPLR R. 3211 Roundup: It’s going to be loooong.

Because I can't let all of these decisions keep on piling up, I'm doing a 3211 dump.  This will probably be followed by a 300's dump, and maybe a 3212 dump.

There is a lot here, but it's worth skimming.  Most of the cases related to improper service or conversion (3211–>3212).

Garner
v China Natural Gas, Inc., 2010 NY Slip Op 02095 (App. Div.,
2nd, 2010)

Although the defendants' motion was
made pursuant to CPLR 3211, the
Supreme Court, in effect, converted that branch of the motion which was
to dismiss the cause of action alleging breach of contract into a motion
for summary judgment pursuant to CPLR 3212. This was error (see
Mihlovan v Grozavu, 72 NY2d 506; Bowes v Healy, 40 AD3d 566).
Thus, this Court will apply to the entire complaint the standards
applicable to a motion to dismiss pursuant to CPLR 3211 (see
Neurological Serv. of Queens, P.C. v Farmingville Family Med. Care, PLLC,
63 AD3d 703, 704).

In assessing a motion to dismiss made
pursuant to CPLR
3211(a)(7), the facts pleaded are presumed to be true and are accorded
every favorable inference (see Riback v Margulis, 43 AD3d
1023).
However, bare legal conclusions, as well as factual claims flatly
contradicted by the record, are not entitled to any such consideration (id.).

He-Duan Zheng v American Friends of the Mar Thoma Syrian Church
of Malabar, Inc., 67 AD3d 639 (App. Div., 2nd, 2009)

The defendant Mar Thoma Church (hereinafter the Church) alleged that
the plaintiff failed to
obtain leave of court prior to serving a supplemental summons and
amended complaint naming it
as a defendant in this action (see CPLR 1003). However, the
failure to obtain prior leave
of court is a waivable defect, and is not fatal in all instances (see
Gross v BFH Co., 151
AD2d 452 [1989]; see also Tarallo v Gottesman, 204 AD2d 303
[1994]; Santopolo v
Turner Constr. Co., 181 AD2d 429 [1992]; cf. Public Adm'r of Kings County v McBride, 15
AD3d 558
[2005]).

In this case, the Church failed to raise its defense of improper
joinder in a timely, pre-answer
motion to dismiss the complaint, and also failed to assert such defense
in its answer.
Accordingly, it waived the defense (see CPLR 3211 [a] [8]; [e]).
The defense that the
Church did raise, that the court lacked jurisdiction over it, "by reason
of the manner in which the
summons was served," implicates the distinct personal jurisdictional
defense of improper service
of process, and was insufficiently specific to place the plaintiff on
notice that the Church was
complaining of improper joinder (see McDaniel v Clarkstown Cent.
Dist. No. 1, 83
AD2d 624, 625 [1981]).

In any event, the Church waived its improper joinder defense by
its conduct in [*2]attending and
participating in a preliminary conference setting forth
a schedule for discovery, and in waiting until after the applicable
statute of limitations had
expired prior to making its motion to dismiss (see Tarallo v
Gottesman, 204 AD2d 303
[1994]; Santopolo v Turner Constr. Co., 181 AD2d 429 [1992]; Gross
v BFH Co.,
151 AD2d 452 [1989]). Moreover, the Church cannot claim surprise or
prejudice due to the
plaintiff's delay in seeking leave to add it as a defendant in light of
the statements made by its
Treasurer to the investigators for its insurance carrier indicating that
the Church was aware of the
subject accident on the very day that it occurred.

Pistolese v William Floyd Union Free Dist., 69 AD3d 825 (App. Div., 2nd, 2010)

In late June 2008, on the last day of the school year, the infant
plaintiff allegedly was
assaulted by other youths, as he walked home from school with friends
rather than ride a school
bus. The incident allegedly occurred along Montauk Highway, some 30
minutes after the infant
plaintiff left the school grounds. Although this was a pre-answer
motion, under the facts of this
case, the Supreme Court should have treated it as one for summary
judgment pursuant to CPLR
3211 (c) since the defendant not only requested such treatment, but both
the defendant and the
plaintiffs deliberately charted a summary judgment course (see
Mihlovan v Grozavu, 72
NY2d 506, 508 [1988]; see generally
McNamee Constr. Corp. v City of New Rochelle, 29 AD3d 544, 545
[2006]).

While schools are under a duty to adequately supervise the
students in their charge, they are
not insurers of the safety of their students (see Vernali v Harrison Cent. School Dist., 51
AD3d 782, 783
[2008]; Maldonado v Tuckahoe Union
Free School Dist., 30 AD3d 567, 568 [2006]; Chalen v Glen Cove School Dist., 29 AD3d 508,
509 [2006]). "[A]
school's duty is coextensive with, and concomitant with, its physical
custody and control over a
child" (Stagg v City of New York,
39 AD3d 533, 534 [2007]) and its "custodial duty ceases once the
student has passed out of
its orbit of authority and the parent is perfectly free to reassume
control over the child's
protection" (Vernali v Harrison Cent. School Dist., 51 AD3d at
783; see Pratt v
Robinson, 39 NY2d 554, 560 [1976]).
[*2]

Here, the incident occurred at a
time when the injured
plaintiff was no longer in the defendant's custody or under its control
and was, thus, outside of
the orbit of its authority. Accordingly, the defendant demonstrated its
prima facie entitlement to
judgment as a matter of law (see
Fotiadis v City of New York, 49 AD3d 499 [2008]; Stagg v City of New York, 39 AD3d 533, 534
[2007]; Morning v Riverhead Cent. School
Dist., 27 AD3d 435, 436 [2006]; Ramo v Serrano, 301 AD2d
640, 641 [2003]).

In opposition, the plaintiffs failed to raise a triable issue of
fact. They also failed to articulate
any nonspeculative basis to believe that discovery might yield evidence
warranting a different
result (see Stagg v City of New York, 39 AD3d at 534).

Frydman v Fidelity Natl. Tit. Ins. Co., 68 AD3d 622 (App. Div., 1st, 2009)

We have
considered plaintiffs' argument that the court improperly converted a
breach of contract action
into a declaratory judgment action and, without CPLR 3211 (c) notice,
converted a motion by
[*2]defendant to dismiss the complaint into
a motion for
summary judgment, and find it to be unavailing (see CPLR 2002;
Shah v Shah,
215 AD2d 287, 289 [1995]). This case contains no factual disputes, and
by submitting before the
Supreme Court every relevant piece of documentary evidence, along with
affidavits of
representatives of both parties discussing the application of such
evidence, the parties have
charted a course for summary judgment. Accordingly, the court properly
entered a declaratory
judgment in favor of defendants.

Continue reading “The CPLR R. 3211 Roundup: It’s going to be loooong.”

An application that shouldn’t have been denied

Verdi v Ho, 2010 NY Slip Op 02548 (App. Div., 2nd, 2010)

A week prior to the scheduled trial date of this action, the plaintiffs discovered that their medical expert had elected not to testify at trial. Accordingly, the plaintiffs' attorney, in effect, made an application for a continuance in order to obtain a new expert. In response, the defendants' counsel made an application to dismiss the amended complaint. By order dated November 3, 2008, the Supreme Court denied the plaintiffs' application and granted the defendants' application, dismissing the amended complaint with prejudice. Upon reargument, by order dated June 11, 2009, the Supreme Court, inter alia, adhered to so much of its original determination as granted the defendants' application to dismiss the amended complaint. We reverse the order dated June 11, 2009, insofar as appealed from.

"Although an application for a continuance is addressed to the sound discretion of the trial [*2]court, it is an improvident exercise of discretion to deny a continuance where the application is properly made, is not made for the purpose of delay, the evidence is material, and the need for a continuance did not result from the failure to exercise due diligence" (Mura v Gordon, 252 AD2d 485, 485; see Notrica v North Hills Holding Co., LLC, 43 AD3d 1119, 1120; Romero v City of New York, 260 AD2d 461). Balancing the appropriate factors, the Supreme Court improvidently exercised its discretion in, in effect, denying the plaintiffs' application, in effect, for a continuance and in granting the defendants' application to dismiss the amended complaint.

The bold is mine.

CPLR R. 3404 and Judicial Notice

CPLR R. 3404 Dismissal of abandoned cases

Matter of Cento Props. Co. v Assessor, 2010 NY Slip Op 02556 (App. Div., 2nd, 2010)

In the interim, in or around September 1999, Cento filed a note of issue with respect to the original proceeding. Subsequently, on September 25, 2001, the original proceeding appeared on the trial calendar. On that date, pursuant to certain procedures that former Justice Leo F. McGinity had implemented years earlier in an attempt to reduce the backlog of tax certiorari proceedings on the trial calendar, the original proceeding was removed from the trial calendar so the County could obtain a preliminary appraisal, after which the parties could try to settle the matter. Thereafter, the subsequent related proceedings were marked "inactive pre-note." [*2]

Ultimately, on or about November 21, 2007, with the parties unable to reach a settlement, Cento moved to restore the original proceeding to the trial calendar and, in effect, to restore the subsequent related proceedings to active status. The County opposed restoration of both the original proceeding and the subsequent related proceedings. The Supreme Court denied the motion, after which Cento moved to reargue. Upon granting leave to reargue, the Supreme Court granted Cento's motion to restore, holding that (1) restoration of the original proceeding to the trial calendar is appropriate since Cento satisfied the four-prong test for restoring, to the trial calendar, a matter marked "off" the trial calendar pursuant to CPLR 3404 for more than one year, and (2) restoration of the subsequent related proceedings to active status is automatic because the County had failed to serve a 90-day notice pursuant to CPLR 3216. We affirm, but for different reasons.

A review of the information on the New York State Unified Court System E-Courts public website, of which we take judicial notice (see Kingsbrook Jewish Med. Ctr. v Allstate Ins. Co., 61 AD3d 13, 20), reveals that, when the original proceeding appeared on the trial calendar in 2001, the court marked the case "settled before trial." Accordingly, the original proceeding was not marked "off" or stricken from the calendar pursuant to CPLR 3404 (see Long-Waithe v Kings Apparel Inc., 10 AD3d 413, 414; Baez v Kayantas, 298 AD2d 416; Basetti v Nour, 287 AD2d 126). For the reasons set forth in our determination on a companion appeal (see Matter of Transtechnology Corp. v AssessorAD3d [decided herewith]), the Supreme Court correctly recognized that it misapprehended the law relevant to the instant dispute and, thus, correctly granted that branch of the petitioner's motion which was for leave to reargue and thereupon granted those branches of Cento's motion which were to restore the original proceeding to the trial calendar and, in effect, to restore the subsequent related proceedings to active status.

And one older 3404 decision that I never got around to posting.

Kahgan v Alwi, 67 AD3d 742 (App. Div., 2nd, 2009)

The plaintiff filed her note of issue on January 6, 2005. On November 9, 2005 the case was marked off the trial calendar, at the plaintiff's request, after the defendants moved for summary judgment. Prior to the expiration of one year after the action was marked off the calendar, the plaintiff moved, in or about July 2006, to restore the action to the trial calendar. However, although the notice of motion indicated a return date, this motion never appeared on any court calendar. In January 2008 the plaintiff again moved for an order "restoring this matter to active status for determination on the merits." This motion was denied by the Supreme Court, and we reverse.

CPLR 3404 creates a rebuttable presumption that an action marked off the trial calendar and not restored within one year has been abandoned (see Sanchez v Denkberg, 284 AD2d 446 [2001]). The court retains discretion to grant a motion to restore a case to the trial calendar after the one-year period has expired (see Ford v Empire Med. Group, 123 AD2d 820 [1986]). Here, it is undisputed that the plaintiff initially moved to restore the matter to the trial calendar within one year after it was marked off and that, for reasons which are not discernible on the record, the court never addressed that motion. Moreover, the record reveals that there was continued activity on the case just before the second motion to restore was made. Although the plaintiff could have more promptly moved a second time to restore the case to the calendar, under all of the circumstances, we conclude that there was a reasonable excuse for the delay in prosecution and a lack of intent to abandon the action (see Drucker v Progressive Enters., 172 AD2d 481 [1991]). Furthermore, the plaintiff has demonstrated a meritorious cause of action and a lack of prejudice to the defendant. Accordingly, the Supreme Court improvidently exercised its discretion in refusing to restore the matter to the trial calendar (see Sheridan v Mid-Island Hosp., Inc., 9 AD3d 490 [2004]; Acciarito v Homedco, Inc., 237 AD2d 236 [1997]).

One way out of a mortgage CPLR R. 3215(c)

JBR Constr. Corp. v Staples, 2010 NY Slip Op 02514 (App. Div., 2nd, 2010)

RPAPL 1501(4) provides that "[w]here the period allowed by the applicable statute of limitation for the commencement of an action to foreclose a mortgage . . . has expired," any person with an estate or interest in the property may maintain an action "to secure the cancellation and discharge of record of such encumbrance, and to adjudge the estate or interest of the plaintiff in such real property to be free therefrom" (RPAPL 1501[4]). Here, the plaintiff property owner made a prima facie showing of its entitlement to judgment as a matter of law declaring that the subject mortgage is invalid by establishing that a foreclosure action commenced by the defendant mortgagee in 2001 was dismissed by this Court as abandoned pursuant to CPLR 3215(c) (see Staples v Jeff Hunt Devs., Inc., 56 AD3d 459), and that the commencement of a new foreclosure action would be time-barred by the applicable six-year statute of limitations (see CPLR 213[4]; LePore v Shaheen, 32 AD3d 1330, 1331; Corrado v Petrone, 139 AD2d 483; see also Plaia v Safonte, 45 AD3d 747; Zinker v Makler, 298 AD2d 516). In opposition, the defendant failed to raise a triable issue of fact as to whether the statute of limitations was tolled or revived (see Alvarez v Prospect Hosp., 68 NY2d 320; Rack v Rushefsky, 5 AD3d 753). Accordingly, the Supreme Court should have granted those branches of the plaintiff's motion which were for summary judgment declaring that the subject mortgage is invalid and directing the County Clerk of Dutchess County [*2]to cancel it (see LePore v Shaheen, 32 AD3d 1330; Corrado v Petrone, 139 AD2d 483).

That branch of the plaintiff's motion which sought cancellation of the notice of pendency filed in connection with the dismissed foreclosure action was not addressed by the Supreme Court. Accordingly, that branch of the plaintiff's motion remains pending and undecided, and the issues raised with respect thereto are not properly before us (see Lend-Mor Mtge. Bankers Corp. v Nicholas, 69 AD3d 680; Fremont Inv. & Loan v Delsol, 65 AD3d 1013, 1015; Zellner v Tarnell, 65 AD3d 1335, 1337; Katz v Katz, 68 AD2d 536, 542-543).

The bold is mine.

Not Aggrieved (CPLR § 5511)

DKFT Pizza, Inc. v Riviera Plaza, LLC, 2010 NY Slip Op 02086 (App. Div., 2nd, 2010)

Only "[a]n aggrieved party or a person substituted for him may appeal from any appealable . . . order" (CPLR 5511). "A party is aggrieved by an order when it directly affects that party's individual rights" (Berrechid v Shahin, 60 AD3d 884, 884; see Carollo v Northern Westchester Hosp. Ctr., 5 AD3d 715). Since the Supreme Court's order, which preliminarily enjoined the defendants DCB Food Services Corp., d/b/a Sandella's Cafe, and Danielle DiBenedetto from selling certain food and beverage items at their cafÉ, did not affect the rights of the defendants Riviera Plaza, LLC, and Riviera Plaza Associates, the latter two are not aggrieved by the order, and the appeal must be dismissed (see generally Matter of Commercial Bank of Informatics & Computing Technique Dev. Bank Informtechnika v Ostashko, 274 AD2d 516; Law v Benedict, 197 AD2d 808; see also Won's Cards v Samsondale/Haverstraw Equities, 165 AD2d 157, 162).

The bold is mine.

Civil Contempt

Astrada v Archer, 2010 NY Slip Op 02078 (App. Div., 2nd, 2010)

Contrary to Felton's contention, the Supreme Court properly granted that branch of the plaintiff's motion which was to hold her in contempt of court based upon her failure to comply with the order dated February 14, 2007. In order to prevail on a motion to punish a party for civil contempt, the movant must demonstrate that the party charged violated a clear and unequivocal court order, thereby prejudicing a right of another party to the litigation (see Judiciary Law § 753[A][3]; Orange County-Poughkeepsie Ltd. Partnership v Bonte, 37 AD3d 684, 686; Goldsmith v Goldsmith, 261 AD2d 576, 577). To satisfy the prejudice element, it is sufficient to allege and prove that the contemnor's actions were calculated to or actually did defeat, impair, impede, or prejudice the rights or remedies of a party (see Orange County-Poughkeepsie Ltd. Partnership v Bonte, 37 AD3d at 686; Yeshiva Tifferes Torah v Kesher Intl. Trading Corp., 246 AD2d 538).

This next one provides a comparison to the requirements for criminal contempt.

Town of Riverhead v T.S. Haulers, Inc., 68 AD3d 1103 (App. Div., 2nd, 2009)

To prevail on a motion to punish for civil contempt, the movant must establish, by clear and convincing evidence (1) that a lawful order of the court, clearly expressing an unequivocal mandate, was in effect, (2) that the order was disobeyed and the party disobeying the order had knowledge of its terms, and (3) that the movant was prejudiced by the offending conduct (see Coyle v Coyle, 63 AD3d 657, 658 [2009]; Kalish v Lindsay, 47 AD3d 889 [2008]; Galanos v Galanos, 46 AD3d 507 [2007]; Biggio v Biggio, 41 AD3d 753 [2007]; Gloveman Realty Corp. v Jefferys, 29 AD3d 858, 859 [2006]). To prevail on a motion to punish for criminal contempt, the movant must establish, beyond a reasonable doubt, the willful disobedience of a court's lawful mandate (see Judiciary Law § 750 [A] [3]; § 751; Muraca v Meyerowitz, 49 AD3d 697 [2008]; see also Matter of Rubackin v Rubackin, 62 AD3d 11, 19 [2009]). Here, the plaintiff did not meet its burden (see Wheels Am. N.Y., Ltd v Montalvo, 50 AD3d 1130 [2008]; Panza v Nelson, 54 AD2d 928 [1976]). Therefore, the hearing court properly denied the plaintiff's motion to hold the defendant in civil and/or criminal contempt.

The bold is mine.

Pleading Defamation and Fraud. CPLR R. 3016(a)(b)

Moreira-Brown v City of New York, 2010 NY Slip Op 02063 (App. Div., 1st, 2010)

In this action for defamation and emotional distress, the verified complaint alleges that on or about September 12, 1998, defendant Police Detective Raymond Rivera, acting as agent for his codefendants, made written and verbal defamatory statements that plaintiff "had committed rape and sexual assault and was being sought by the police for arrest and prosecution [for] rape and sexual assault." These words were not demarcated as a quotation in the complaint. Dismissing the complaint, the motion court held that plaintiff had not complied with CPLR 3016(a) because the complaint "does not set forth the particular words alleged to be defamatory."

While a complaint alleging defamation must allege the particular spoken or published words on which the claim is based, the words need not be set in quotation marks (see John Langenbacher Co. v Tolksdorf, 199 AD2d 64 [1993]). When construed in the light most favorable to plaintiff, the complaint alleges that Detective Rivera specifically stated that plaintiff "had committed rape and sexual assault," and "was being sought by the police for arrest and [*2]prosecution" for those crimes. This allegation is sufficient to meet the requirements of CPLR 3016(a).

Colasacco v Robert E. Lawrence Real Estate, 68 AD3d 706 (App. Div., 2nd, 2009)

CPLR 3016 (b) provides, in relevant part, that "[w]here a cause of action or defense is based upon misrepresentation, fraud, mistake . . . the circumstances constituting the wrong shall be stated in detail." The specificity requirements are relaxed where it is alleged that the particular circumstances of the alleged fraud are peculiarly within the defendants' knowledge (see Pludeman v Northern Leasing Sys., Inc., 10 NY3d 486, 491-492 [2008]; Pericon v Ruck, 56 AD3d 635, 636 [2008]).

"The essential elements of a cause of action sounding in fraud are a misrepresentation or a material omission of fact which was false and known to be false by defendant, made for the purpose of inducing the other party to rely upon it, justifiable reliance of the other party on the misrepresentation or material omission, and injury" (Orlando v Kukielka, 40 AD3d 829, 831 [2007]; see Ross v DeLorenzo, 28 AD3d 631, 636 [2006]). Here, the complaint fails to allege the elements of fraud with sufficient specificity. In particular, the complaint fails to allege that DiCorato's alleged misrepresentations to the plaintiffs were known by the defendants to be false. Furthermore, it is clear from the face of the complaint that the plaintiffs' supposed reliance upon DiCorato's alleged misrepresentations concerning the location of the property's boundary lines was unreasonable as a matter of law (see Orlando v Kukielka, 40 AD3d at 831). There was no allegation in the complaint that the dimensions and boundary lines of the subject property were within the exclusive knowledge of the defendants. Indeed, the plaintiffs could easily have ascertained these facts through the use of ordinary means (see Esposito v Saxon Home Realty, 254 AD2d 451 [1998]; Bennett v Citicorp Mtge., Inc., 8 AD3d 1050 [2004]; Mosca v Kiner, 277 AD2d 937, 938 [2000]). Accordingly, the Supreme Court should have dismissed the fraud cause of action pursuant to CPLR 3211 (a) (7).

Similarly, the cause of action sounding, in effect, in negligent misrepresentation also fails to meet the specificity requirements of CPLR 3016 (b). Furthermore, in order to prevail on such a cause of action, a plaintiff must establish that the defendant had a duty to use reasonable care to impart correct information due to a special relationship between the parties, that the information was incorrect or false, and that the plaintiff reasonably relied upon the information (see Grammer v Turits, 271 AD2d 644, 645 [2000]). The complaint fails to allege that the defendants had a duty to the plaintiffs to impart correct information arising out of a special relationship between them. Moreover, as with the fraud cause of action, the complaint fails to allege circumstances under which the plaintiffs' reliance upon DiCorato's alleged misrepresentations could be considered reasonable or justifiable. Thus, the Supreme Court should also have dismissed the second cause of action pursuant to CPLR 3211 (a) (7).

The bold is mine.

Can’t meet prima facie burden by adding new evidence in reply. And CPLR R. 2106

Yeum v Clove Lakes Health Care & Rehabilitation Ctr., Inc., 2010 NY Slip Op 01930 (App. Div., 2nd, 2010)

Clove Lakes' failure to make a prima facie showing required the denial of the motion, regardless of the sufficiency of the opposition papers (see Winegrad v New York Univ. Med. Ctr., 64 NY2d 851, 853). Clove Lakes' prima facie burden cannot be met by evidence submitted for the first time in its reply papers (see David v Bryon, 56 AD3d 413; Barrera v MTA Long Is. Bus, 52 AD3d 446).

And you can't submit an affirmation that does not actually affirm. 

Niazov v Corlean Cab Corp., 2010 NY Slip Op 01941 (App. Div., 2nd, 2010)

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). In support of their motion, the defendants relied upon, inter alia, the report of an orthopedic surgeon who examined the plaintiff. The report was without any probative value since he failed to affirm the contents of his report under the penalties of perjury, as required by CPLR 2106 (see Magro v He Yin Huang, 8 AD3d 245; Slavin v Associates Leasing, 273 AD2d 372; Baron v Murray, 268 AD2d 495; Cwiekala v Siddon, 267 AD2d 193). Without the report, the defendants could not meet their burden on the motion.

Since the defendants failed to meet their prima facie burden, it is unnecessary to consider whether the papers submitted by the plaintiff in opposition were sufficient to raise a triable issue of fact (see Gaccione v Krebs, 53 AD3d 524; Coscia v 938 Trading Corp., 283 AD2d 538).

In both of these cases the motions were denied without needing to look at the opposition papers.  Bad papers get motions denied, even if the opposition papers are horrible.  Even if there are no opposition papers.  The movant still has it's burden.

Finally, parties can't affirm, no matter how hard they swear under penalties of perjury.

I forgot to post this old subpoena decision, but it reminded me to post two recent decisions

Hart v Kinney Drugs, Inc., 67 AD3d 1154 (App. Div., 3rd, 2009)

In 2007, after relations between the parties had deteriorated and the tenant brought an action against two of the landlords' principals, the landlords commenced this action alleging that, among other things, the tenant had breached the parties' agreements by failing to pay percentage rents for the three stores. The tenant answered that the memorandum had terminated its obligation to pay percentage rents for those stores and served a subpoena for the records of the landlords' bank. When the landlords moved to quash the subpoena, the tenant cross-moved for summary judgment dismissing the cause of action.

Finding the memorandum to be ambiguous as to whether the tenant was obligated to pay percentage rents for the three stores, Supreme Court denied the tenant's cross motion and partially denied the landlords' motion to quash by greatly narrowing the scope of the tenant's subpoena. The landlords then moved to renew the motion to quash the subpoena in its entirety and attempted to present a further "Global Lease Agreement" in support of its position. That motion also was denied. The landlords now appeal from Supreme Court's orders, contending that the memorandum is not ambiguous since it is silent as to percentage rents for the three stores and, therefore, the lease terms regarding percentage rents remain unchanged. The landlords argue that, in the absence of any ambiguity, the information sought by the tenant's subpoena is extrinsic evidence that cannot be considered in construing the memorandum.

There can be no real dispute that the tenant's subpoena seeks extrinsic evidence. Inasmuch as extrinsic evidence of the parties' intent may be considered only if their agreement is ambiguous (see Greenfield v Philles Records, 98 NY2d 562, 569 [2002]; R/S Assoc. v New York Job Dev. Auth., 98 NY2d 29, 33 [2002]), the landlords' motion to quash necessarily depends upon whether the memorandum is ambiguous. It is well settled that "[w]hether or not a writing is ambiguous is a question of law to be resolved by the courts" (W.W.W. Assoc. v Giancontieri, 77 NY2d 157, 162 [1990]). In addition, while "silence does not equate to contractual ambiguity" (Greenfield v Philles Records, 98 NY2d at 573; see Reiss v Financial Performance Corp., 97 NY2d 195, 199 [2001]), an omission as to a material issue can create an ambiguity and allow the use of extrinsic evidence where the context within the document's four corners suggests that the parties intended a result not expressly stated (see Louis Dreyfus Energy Corp. v MG Ref. & Mktg., Inc., 2 NY3d 495, 500 [2004]; Barrow v Lawrence United Corp., 146 AD2d 15, 18-19 [1989]).

***

Inasmuch as the memorandum can be read as providing either a new, increased single rent term that replaced the prior base and percentage rents for the three stores, as the tenant claims, or new, increased base rents in addition to the existing percentage rents, as the landlords claim, it is ambiguous. In view of the questions raised by the memorandum's inconsistent treatment of these two groups of stores, unexplained within its four corners, Supreme Court properly determined that extrinsic evidence is needed to determine the parties' intent in executing it (see Louis Dreyfus Energy Corp. v MG Ref. & Mktg., Inc., 2 NY3d at 500; Belknap v Witter & Co., 61 NY2d 802, 804 [1984], affg 92 AD2d 515 [1983]; State of New York v Industrial Site Servs., Inc., 52 AD3d 1153, 1156 [2008]; Barrow v Lawrence United Corp., 146 AD2d at 18).

Given that ruling, Supreme Court also did not abuse its discretion in permitting disclosure of the landlords' records held by a nonparty to the extent that they could reveal the parties' intent in executing the memorandum. The tenant sufficiently demonstrated that the information which it sought was material and necessary. Further, the court carefully limited the scope of disclosure to shield confidential financial information, making it unnecessary for the tenant to show that the information is indispensable (see generally Allen v Crowell-Collier Publ. Co., 21 NY2d 403, 406-407 [1968]; Jordan v Blue Circle Atl., 296 AD2d 752, 752-753 [2002]; cf. Saratoga Harness Racing v Roemer, 274 AD2d 887, 889 [2000]).

Finally, in light of the landlords' failure to adequately explain the omission of the Global Lease Agreement from their submission on the parties' initial motions, Supreme Court did not abuse its discretion by denying the motion to renew (see Matter of Mouawad, 61 AD3d 1169, 1169-1170 [2009]; Kahn v Levy, 52 AD3d 928, 929 [2008]).

Almost on topic is a more recent decision: Gitlin v Chirinkin, 2010 NY Slip Op 01920 (App. Div., 2nd, 2010)

The Supreme Court did not improvidently exercise its discretion in denying that branch of the appellants' motion which was to compel the plaintiff to disclose his tax returns and bank records. The appellants failed to demonstrate that any information in the tax returns was indispensable to their defense or counterclaim and could not be obtained from other sources (see Pugliese v Mondello, 57 AD3d 637; Latture v Smith, 304 AD2d 534, 536; see also Banigan v Hill, 57 AD3d 463; Benfeld v Fleming Props., LLC, 44 AD3d 599). Moreover, the appellants failed to demonstrate that the plaintiff's bank records were material and necessary to their defense or counterclaim (see CPLR 3101[a]; Auerbach v Klein, 30 AD3d 451).

The plaintiff sustained his burden of demonstrating that the appellants should be required to disclose their tax returns (see Kerman v Martin Friedman, C.P.A., P.C., 21 AD3d 997). In addition, the plaintiff also clearly demonstrated that the bank records he requested of the appellants were material and necessary to the pursuit of his claims that the defendants had defrauded him. Accordingly, the Supreme Court providently exercised its discretion in denying that branch of the appellants' motion which was for a protective order pursuant to CPLR 3103.

Tangentially related is Riccuiti v Consumer Prod. Servs., LLC, 2010 NY Slip Op 01947 (App. Div., 2nd, 2010)

Thereafter, the plaintiff moved, inter alia, for summary judgment on the issue of liability and pursuant to CPLR 3126 to strike the answer insofar as asserted on behalf of Kowalski, based upon Kowalski's failure to appear for a court-ordered deposition.

***

"Although actions should be resolved on the merits whenever possible, where the conduct of th
e resisting party is shown to be willful and contumacious, the striking of a pleading is warranted" (Savin v Brooklyn Mar. Park. Dev. Corp., 61 AD3d 954, 954). Here, the Supreme Court providently exercised its discretion in striking the answer insofar as asserted on behalf of Kowalski. The record reflects that the answer was interposed on behalf of both defendants, and that Kowalski did not raise any defenses based upon lack of personal jurisdiction. In opposition to that branch of the plaintiff's motion which was to strike the answer insofar as asserted on behalf of Kowalski, defense counsel represented that his office was unable to locate Kowalski and, therefore, could not produce him for a deposition. The mere fact that Kowalski may have been outside the State of New York, and had made himself unavailable, did not preclude the Supreme Court from striking the answer [*2]insofar as interposed by him for failure to appear at a court-ordered deposition (see Carabello v Luna, 49 AD3d 679, 680; Maignan v Nahar, 37 AD3d 557).

The bold is mine.