[App Div 2d Dept]

Experts

Simpson v Edghill, 169 AD3d 737 [2d Dept. 2019]

In opposition, the affidavit of the plaintiff’s expert failed to raise a triable issue of fact as to the causation element. “ ’While it is true that a medical expert need not be a specialist in a particular field in order to testify regarding accepted practices in that field . . . the witness nonetheless should be possessed of the requisite skill, training, education, knowledge or experience from which it can be assumed that the opinion rendered is reliable’ ” (Behar v Coren, 21 AD3d 1045, 1046-1047 [2005], quoting Postlethwaite v United Health Servs. Hosps., 5 AD3d 892, 895 [2004]). “Thus, where a physician opines outside his or her area of specialization, a foundation must be laid tending to support the reliability of the opinion rendered” (Behar v Coren, 21 AD3d at 1047; see Galluccio v Grossman, 161 AD3d 1049, 1052 [2018]). Here, the plaintiff’s expert, who was board certified in ophthalmology, was qualified to, and did, raise a triable issue of fact as to whether Edghill deviated from the accepted standard of care in failing to refer the plaintiff to a neurologist to further evaluate his symptoms. However, the affidavit was insufficient to establish that the plaintiff’s meningioma could have been treated by radiation instead of surgery if it had been detected in November 2014. The plaintiff’s expert failed to articulate that he had any training in the treatment of meningiomas or what, if anything, he did to familiarize himself with the applicable standard of care. The affidavit, therefore, lacked probative value and failed to raise a triable issue of fact as to whether any departure from the accepted standard of care proximately caused the plaintiff’s injuries (see Feuer v Ng, 136 AD3d 704, 707 [2016]; Tsimbler v Fell, 123 AD3d 1009, 1010 [2014]).

Noble v Kingsbrook Jewish Med. Ctr., 168 AD3d 1077 [2d Dept. 2019] (same as Simpson v Edghill, 169 AD3d 737 [2d Dept. 2019]

Sanchez v L.R.S. Cab Corp., 169 AD3d 733 [2d Dept. 2019]

In opposition, the appellant failed to raise a triable issue of fact. The affirmed report of the appellant’s neurologist was insufficient to raise a triable issue of fact, as it failed to expressly compare the appellant’s range of motion to a normal range of motion, and it failed to provide any qualitative assessment of the appellant’s condition (see Toure v Avis Rent A Car Sys., 98 NY2d at 350; Fiorillo v Arriaza, 52 AD3d 465, 466-467 [2008]; Kaminski v Kawamoto, 49 AD3d 501, 502 [2008]).

Cho v Demelo, 2019 NY Slip Op 06467 [2d Dept. 2019]

The Supreme Court should not have granted that branch of the defendants’ motion which was for summary judgment dismissing the complaint on the ground that the plaintiff did not sustain a serious injury. The defendants failed to meet their prima facie burden on the motion (see generally Toure v Avis Rent A Car Sys., 98 NY2d 345; Gaddy v Eyler, 79 NY2d 955). The affirmed report of their orthopedic surgeon failed to identify the objective tests that were utilized to measure the plaintiff’s ranges of motion, and thus, did not support the conclusion that the plaintiff suffered no limitations as a result of the accident (see Zavala v Zizzo, 172 AD3d 793, 794; Bayk v Martini, 142 AD3d 484; Durand v Urick, 131 AD3d 920; Exilus v Nicholas, 26 AD3d 457). It is therefore unnecessary to determine whether the papers submitted by the plaintiff in opposition to the motion were sufficient to raise a triable issue of fact (see Winegrad v New York Univ. Med. Ctr., 64 NY2d 851, 853).

Vacatur

CVM Partners 1, LLC v Adams, 173 AD3d 971 [2d Dept. 2019]

No appeal lies from an order or judgment granted upon the default of the appealing party (see CPLR 5511; HSBC Bank USA, N.A. v Gervais, 168 AD3d 692, 693 [2019]; HSBC Bank USA, N.A. v Simms, 163 AD3d 930, 932 [2018]; Adotey v British Airways, PLC, 145 AD3d 748, 749 [2016]). Although “an appeal from such a judgment brings up for review those matters which were the subject of contest before the Supreme Court” (Geffner v Mercy Med. Ctr., 167 AD3d 571, 572 [2018] [internal quotation marks omitted]; see Bottini v Bottini, 164 AD3d 556, 558 [2018]; Alam v Alam, 123 AD3d 1066, 1067 [2014]), the defendant here defaulted at every stage of the proceedings, beginning with his failure to appear or answer the complaint, continuing with his failure to appear on the return dates of his two motions, brought on by orders to show cause, one of which sought to vacate his default in failing to appear at a scheduled court conference, and ending with his failure to oppose the motions that led to the amended judgment of foreclosure and sale appealed from. Accordingly, since there were no “matters which were the subject of contest before the Supreme Court” (Geffner v Mercy Med. Ctr., 167 AD3d at 572 [internal quotation marks omitted]), the appeal must be dismissed in its entirety.

Equity Inv. & Mtge. Co. v Smith, 173 AD3d 690 [2d Dept. 2019]

Although courts have discretionary power to relieve a party from a judgment or order “for sufficient reason and in the interest[ ] of substantial justice” (Woodson v Mendon Leasing Corp., 100 NY2d 62, 68 [2003]; see Katz v Marra, 74 AD3d 888, 890 [2010]), “[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 [1984] [internal quotation marks omitted]; see HSBC Bank USA v Josephs-Byrd, 148 AD3d 788, 790 [2017]). Here, the arguments advanced by the City in support of its motion did not constitute grounds for relief, either under CPLR 5015 (a) or pursuant to the Supreme Court’s inherent discretionary power to vacate the judgment for sufficient reason and in the interest of substantial justice (see Matter of McKenna v County of Nassau, Off. of County Attorney, 61 NY2d at 742; HSBC Bank USA v Josephs-Byrd, 148 AD3d at 790; Alexander v New York City Tr. Auth., 35 AD3d 772 [2006]).

Diamond v Leone, 173 AD3d 686 [2d Dept. 2019]

The Supreme Court improvidently exercised its discretion in finding that the plaintiff did not demonstrate a reasonable excuse for her failure to appear on November 28, 2017. In an affirmation in support of the motion, the plaintiff’s attorney submitted a detailed and credible explanation of the law office failure which caused the default in appearing. The plaintiff’s attorney affirmed that an entry in the “Comments” field for the subject appearance date on the “eLaw” website had created confusion as to whether the scheduled appearance had been adjourned from November 28 to November 30, and that the attorney’s law office had repeatedly attempted to contact the Part Clerk on November 27 and November 28 for clarification and had left a voicemail message. The attorney affirmed that when his law office finally communicated directly with the Part Clerk at approximately 11:30 a.m. on November 28, his law office was advised that the case had been dismissed due to the plaintiff’s failure to appear. The attorney’s affirmation was supported by, among other things, printouts from the “eLaw” website. Therefore, the plaintiff provided a reasonable excuse for failing to appear (see 555 Prospect Assoc., LLC v Greenwich Design & Dev. Group Corp., 154 AD3d 909 [2017]; Hobbins v North Star Orthopedics, PLLC, 148 AD3d 784 [2017]; Polsky v Simon, 145 AD3d 693 [2016]). The plaintiff also demonstrated a potentially meritorious cause of action (see 555 Prospect Assoc., LLC v Greenwich Design & Dev. Group Corp., 154 AD3d at 910). Accordingly, the court should have granted the plaintiff’s motion to vacate the “order on default” dated November 28, 2017, and to restore the action to the trial calendar.

Bank of N.Y. Mellon v Ruci, 168 AD3d 799 [2d Dept. 2019]

The appellant’s vague and unsubstantiated claim of law office failure by an unidentified attorney was insufficient to establish a reasonable excuse for her default (see LaSalle Bank, N.A. v LoRusso, 155 AD3d 706, 707 [2017]; U.S. Bank N.A. v Barr, 139 AD3d 937, 938 [2016]; M & T Bank v Morris, 138 AD3d 939 [2016]). Since the appellant failed to establish a reasonable excuse for her default, it is not necessary to determine whether she demonstrated a potentially meritorious defense to the action (see LaSalle Bank, N.A. v LoRusso, 155 AD3d at 706; Bank of N.Y. Mellon v Colucci, 138 AD3d 1047, 1048 [2016]; M & T Bank v Morris, 138 AD3d at 940).

EMC Mtge. Corp. v Walker, 2019 NY Slip Op 06474 [2d Dept. 2019]

Here, when the plaintiff moved, in effect, to vacate the May 2013 order and to restore the action to the calendar, it failed to proffer a reasonable excuse for its default in appearing at the scheduled court conference, and merely alleged that “there was no missed appearance, and as such 22 NYCRR 202.27 does not apply.” Moreover, the plaintiff failed to articulate any basis for the more than 2½-year delay in moving to vacate the order of dismissal (see id. at 1252; Wright v City of Poughkeepsie, 136 AD3d 809). In light of the lack of a reasonable excuse, it is unnecessary to determine whether the plaintiff demonstrated the existence of a potentially meritorious cause of action (see Wright v City of Poughkeepsie, 136 AD3d at 809; Selechnik v Law Off. of Howard R. Birnbach, 120 AD3d 1220). Thus, we disagree with the Supreme Court’s decision to hold a traverse hearing on June 22, 2016, and its subsequent determination granting the plaintiff’s motion, in effect, pursuant to CPLR 5015(a)(1) to vacate the May 2013 order and to restore the action to the calendar, and that branch of the plaintiff’s separate motion which was to extend the time to serve Walker in the interest of justice.

LaSalle Bank, N.A. v Delice, 2019 NY Slip Op 06485 [2d Dept. 2019]

Most importantly, the plaintiff did not provide any explanation as to why it delayed more than five years before filing its motion to vacate, apart from the vague assertion that it hired new counsel because, at some point, the law firm that represented the plaintiff at the time of the January 2011 order subsequently closed. The plaintiff’s contention that the delay was justified because its subsequent counsel expended extensive efforts to comply with Administrative Orders 548/10 and 431/11 of the Chief Administrative Judge of the Courts is raised for the first time on appeal and not properly before us (cf. U.S. Bank N.A. v Ahmed, 137 AD3d 1106, 1108-1109). The plaintiff’s lengthy delay in moving to vacate, failure to adequately explain the delay, and failure to pursue other available avenues of relief support the court’s determination not to exercise its discretion to vacate the dismissal order in the interests of substantial justice (seeHSBC Bank USA v Josephs-Byrd, 148 AD3d at 790; cf. U.S. Bank N.A. v Ahmed, 137 AD3d at 1108-1109).

CPLR 5513(a)

W. Rogowski Farm, LLC v County of Orange, 2019 NY Slip Op 01815 [2d Dept. 2019]

[W]e hold that service of the order or judgment with written notice of entry by any party upon the other parties to the action operates to commence the 30-day time to appeal with respect to not only the serving party, but all the parties in the action.
***
[T]he language of CPLR 5513(a) as to who serves notice of entry is not limited to the “prevailing party,” or to “the appealing party,” or to “the party seeking to limit an adversary’s appellate time.” Rather, “a” party, which is unrestricted, necessarily refers to “any” party to an action. As a result, the service of an order or judgment with written notice of entry commences the 30-day time to appeal as to not only the party performing the service, but as to all other parties as well.
***
The plaintiffs argue that the County’s motion to dismiss the complaint insofar as asserted against it is untimely, as the motion was not filed until after the parties’ briefs had been fully submitted, and that the issue is otherwise waived.
The County’s motion to dismiss is nevertheless entertained and granted on its merits. As previously noted, the time period for filing a notice of appeal is jurisdictional in nature and non-waivable.

Cannot establish prima facie case in reply

GMP Fur Trade Fin., LLC v Brenner, 2019 NY Slip Op 00858 [2d Dept. 2019]

Additionally, the plaintiff could not sustain its prima facie burden by relying on unauthenticated bank records submitted through an attorney affirmation for the first time with its reply papers (see Poole v MCPJF, Inc., 127 AD3d 949, 949-950; DiLapi v Saw Mill Riv., LLC, 122 AD3d 896, 900; Daguerre, S.A.R.L. v Rabizadeh, 112 AD3d 876, 879; Damas v Valdes, 84 AD3d 87, 96).

3216 and mailing / personal knowledge

Bank of Am. v Guillaume, 2019 NY Slip Op 00845 [2d Dept. 2019]

“CPLR 3216 is the general statutory authority for neglect-to-prosecute dismissals” (Baczkowski v Collins Constr. Co., 89 NY2d 499, 502). Pursuant to CPLR 3216, a court may dismiss an action for want of prosecution only after the court or the defendant has served the plaintiff with a written demand requiring the plaintiff “to resume prosecution of the action and to serve and file a note of issue within [90] days after receipt of [the] demand,” and also stating that the failure to comply with the demand will serve as a basis for a motion to dismiss the action.
Notably, the time within which the plaintiff must act runs from the receipt, and not the service of the demand (see Vasquez v City of New York, 5 AD3d 672; Kun Tiam Seow v Yu Dan Li, 1 AD3d 570, 571; 176-60 Union Turnpike v Klinger, 284 AD2d 380). Once the 90-day demand is received, “the plaintiff [is] required to comply with it by filing a note of issue or move before the default date to vacate the demand or extend the 90-day period” (Kushmakova v Meadow Park Rehabilitation & Health Care Ctr., LLC, 56 AD3d 434, 436; see CPLR 3216[c],[e]).
“Generally, proof that an item was properly mailed gives rise to a rebuttable [*2]presumption that the item was received by the addressee'” (New York & Presbyt. Hosp. v Allstate Ins. Co., 29 AD3d 547, 547, quoting Matter of Rodriguez v Wing, 251 AD2d 335, 336). “The presumption may be created by either proof of actual mailing or proof of a standard office practice or procedure designed to ensure that items are properly addressed and mailed” (Residential Holding Corp. v Scottsdale Ins. Co., 286 AD2d 679, 680).
Contrary to the defendant’s contention, she failed to establish that the 90-day demand was sent by certified mail and received by the plaintiff or anyone acting on its behalf. In his affirmation in support of the defendant’s motion, the defendant’s counsel asserted that on July 28, 2017, his office sent a 90-day demand to plaintiff’s counsel by certified mail. However, the defendant’s counsel does not state that he had personal knowledge of the mailing of the 90-day demand or describe his office’s standard practices of mailing litigation papers to opposing counsel. Additionally, even though the certified mail receipt bears a postmark date of July 28, 2017, there was no evidence that the 90-day demand was mailed under that certified mail receipt number (see Mid City Constr. Co., Inc. v Sirius Am. Ins. Co., 70 AD3d 789, 790; New York & Presbyt. Hosp. Allstate Ins. Co., 29 AD3d at 547-548). Therefore, the defendant’s submissions were insufficient to raise a presumption that the plaintiff received the 90-day demand. Accordingly, we agree with the Supreme Court’s denial of the defendant’s motion pursuant to CPLR 3216 to dismiss the complaint insofar as asserted against her for failure to prosecute.

Certificate of readiness

McKiernan v Vaccaro, 2019 NY Slip Op 00267 [1st Dept. 2019]

“Pursuant to Uniform Rules for Trial Courts, a note of issue must be accompanied by a certificate of readiness, which must state that there are no outstanding requests for discovery and the case is ready for trial” (Slovney v Nasso, 153 AD3d 962, 962; see 22 NYCRR 202.21[a], [b]; Furrukh v Forest Hills Hosp., 107 AD3d 668, 669). Here, the plaintiff’s certificate of readiness stated that significant discovery remained outstanding when the note of issue and certificate of readiness were filed. Since the certificate of readiness failed to materially comply with the requirements of 22 NYCRR 202.21, the filing of the note of issue was a nullity (see Slovney v Nasso, 153 AD3d at 962; Furrukh v Forest Hills Hosp., 107 AD3d at 669). Since the note of issue was a nullity, the plaintiff’s argument that the Supreme Court erred in permitting Mancuso to continue with discovery is without merit. Moreover, the plaintiff’s contention that counsel’s affirmation of good faith in support of Mancuso’s motion to vacate the note of issue was insufficient is without merit (see Suarez v Shapiro Family Realty Assoc., LLC, 149 AD3d 526, 527). Accordingly, we agree with the court’s determination to grant Mancuso’s motion to vacate the note of issue and to permit Mancuso to conduct certain discovery.

Mordekai v City of New York, 2019 NY Slip Op 00431 [2d Dept. 2019]

We agree with the Supreme Court’s denial of that branch of the plaintiff’s cross motion which was, in effect, to impose a sanction on the defendants by precluding them from relying upon certain evidence in support of their motion for summary judgment or introducing such evidence at trial. The plaintiff waived any objection to the adequacy and timeliness of the defendants’ disclosure of certain evidence by filing a note of issue and certificate of readiness stating that disclosure was complete and that there were no outstanding requests for disclosure (see Iscowitz v [*2]County of Suffolk, 54 AD3d 725; Melcher v City of New York, 38 AD3d 376; Simpson v City of New York, 10 AD3d 601). In any event, the plaintiff did not make a showing of willful and contumacious conduct on the part of the defendants, nor did the plaintiff demonstrate that he would be substantially prejudiced by the post-note of issue disclosure of the evidence (see Iscowitz v County of Suffolk, 54 AD3d at 725).

Court should not grant motions based on grounds not addressed in the papers

Patel v Sharma, 2019 NY Slip Op 00452 [2d Dept. 2019]

The Supreme Court should not have granted the defendant’s motion for summary judgment on a ground not raised in the defendant’s motion (see Singletary v Alhalal Rest., 163 AD3d 738; Mew Equity, LLC v Sutton Land Servs., LLC, 144 AD3d 874, 877; Quizhpe v Luvin Constr., 70 AD3d 912, 914). “[O]n a motion for summary judgment, the court is limited to the issues or defenses that are the subject of the motion before the court” (Matter of Pritchett, 128 AD3d 836, 837; see Dunham v Hilco Constr. Co., 89 NY2d 425, 429-430; Philogene v Duckett, 163 AD3d 1015). The plaintiff had no opportunity to address the issue regarding the allegedly defective summons, and this “lack of notice and opportunity to be heard implicates the fundamental issue of fairness that is the cornerstone of due process” (Rosenblatt v St. George Health & Racquetball Assoc., LLC, 119 AD3d 45, 54; see Frank M. Flower & Sons, Inc. v North Oyster Bay Baymen’s Assn, Inc., 150 AD3d 965, 966; Matter of Meighan v Ponte, 144 AD3d 917, 918).

Service requirements in OSC are jurisdictional in nature

Boucan NYC Café, LLC v 467 Rogers, LLC, 2019 NY Slip Op 00416 [2d Dept. 2019]

We agree with the defendant’s contention that the service requirements set forth in the order to show cause dated August 9, 2017, were jurisdictional in nature. The plaintiff’s undisputed failure to comply with these requirements by serving the order to show cause pursuant to CPLR 308(4), instead of CPLR 311-a, deprived the Supreme Court of jurisdiction to entertain the plaintiff’s order to show cause in the order dated August 16, 2017 (see Gonzalez v Haniff, 144 AD3d 1087). Contrary to the plaintiff’s contention, the defendant may challenge the validity of the order dated August 16, 2017, on the ground that the court was without jurisdiction to enter the order (see Board of Directors of Windsor Owners Corp. v Platt, 148 AD3d 645). Accordingly, the plaintiff’s motion to hold the defendant in contempt for failure to comply with the order dated August 16, 2017, should have been denied.

Stop denying with leave to renew

Corvino v Schineller, 2019 NY Slip Op 00259 [2d Dept. 2019]

The defendant’s contention that the plaintiff’s motion should have been denied without leave to renew is not properly before this Court. However, we note our concern that, where a motion for summary judgment has been made prematurely, granting leave to renew upon completion of discovery may only encourage the making of premature motions, resulting in successive motion practice and, in turn, successive appeals, thus increasing the burdens on this Court. Motion courts should therefore exercise their discretion with care in deciding whether to give advance permission to a movant to make a successive motion for summary judgment.

Amended complaint was the operative pleading

Delmaestro v Marlin, 2019 NY Slip Op 00260 [2d Dept. 2019]

As a threshold matter, the plaintiff is correct that the amended complaint, which was served as of right while the defendants’ renewed motion was pending (see CPLR 3025[a]; 3211[f]), superseded the original complaint and was the operative pleading in this action (see Taub v Schon, 148 AD3d 1200, 1201; D’Amico v Correctional Med. Care, Inc., 120 AD3d 956, 957). Nevertheless, that branch of the defendants’ renewed motion which sought dismissal of the cause of action alleging promissory estoppel was not rendered academic by the filing of the amended complaint, which was substantially similar to the original pleading, except that it omitted the cause of action for specific performance (see e.g. Sim v Farley Equip. Co. LLC, 138 AD3d 1228, 1228 n 1; Calcagno v Roberts, 134 AD3d 1292, 1292 n). The amended complaint did not substantively alter the original promissory estoppel cause of action, which was the only remaining cause of action being pursued by the plaintiff. Accordingly, under the circumstances of this case, any error by the Supreme Court in disregarding the amended complaint does not constitute grounds for reversal (see e.g. Sim v Farley Equip. Co. LLC, 138 AD3d at 1228 n 1; Calcagno v Roberts, 134 AD3d at 1292 n).