[App Div 2d Dept]

What’s New In 3212? It’s (f)

Sometimes in order to oppose a motion for summary judgment, you need information. You need discovery.That's where CPLR R. 3212(f) comes in. It allows you to oppose the motion, by arguing that you cannot oppose without more information and, you can only get that information from the other party. The absence of discovery will not always be sufficient. There are many cases where the non-moving party needs no additional information to oppose the motion. "But we're entitled to discovery," or similar arguments, will not suffice, absent a articulable need. And be wary of invoking (f) where you, the non-moving party, filed a note of issue. CPLR R. 3211 has a similar provision.

On its face, this is simple stuff. But as usual, the devil is in the details. In the past few months I've seen a bunch of these decisions. I might not have noticed it before. It may just be the cool thing to do–in vogue at the moment.

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

Long Is. Power Auth. v Anderson, 2009 NY Slip Op 07989 (App. Div., 2nd, 2009)

Under the circumstances of this case, however, which include the total absence of any pretrial discovery, the plaintiff's motion for summary judgment was premature (see Ross v Curtis-Palmer Hydro-Elec. Co., 81 NY2d 494, 506; Hall Enters., Inc. v Liberty Mgt. & Constr., Ltd., 37 AD3d 658; see also Matter of Niagara Mohawk Power Corp. v Town of Watertown, 6 NY3d 744).

McCoy v Zaman, 2009 NY Slip Op 07990 (App. Div., 2nd, 2009)

A rear-end collision with a stopped or stopping vehicle creates a prima facie case of negligence with respect to the operator of the moving vehicle and imposes a duty on the operator of the moving vehicle to rebut the inference of negligence by providing a non-negligent explanation for the collision (see Nieves v JHH Transp., LLC, 40 AD3d 1060; Velazquez v Denton Limo, Inc., 7 AD3d 787, 788; Barberena v Budd Enters., 299 AD2d 305, 306).

In opposition to the prima facie demonstration by the plaintiff of his entitlement to judgment as a matter of law, the defendant failed to proffer sufficient evidence to raise a triable issue of fact (see Nieves v JHH Transp., LLC, 40 AD3d at 1060; Rainford v Sung S. Han, 18 AD3d 638, 639). The defendant's affidavit submitted in opposition to the motion raised only feigned issues of fact intended solely to avoid the consequences of his prior admission (see Nieves v JHH Transp., LLC, 40 AD3d at 1060).

Contrary to the defendant's contention, summary judgment was not premature due to the alleged incompleteness of discovery (see Rivas v 525 Bldg Co., 293 AD2d 733, 735). There was no indication that any outstanding discovery might reveal information exclusively within the plaintiff's knowledge upon which his motion could successfully be opposed (see Household Bank [SB] N.A. v Mitchell, 12 AD3d 568, 568-569; Rivas v 525 Bldg Co., 293 AD2d at 735).

Doe v City of New York, 2009 NY Slip Op 08580 (App. Div., 2nd, 2009)

Furthermore, the Supreme Court properly rejected the plaintiff's contention that facts essential to justify opposition to that branch of the MTA/LIRR's motion may exist upon further discovery (see CPLR 3212 [f]). Accordingly, the Supreme Court properly denied the plaintiff's cross motion to compel discovery. The plaintiff failed to offer an evidentiary basis to suggest that discovery may lead to relevant evidence (see Panasuk v Viola Park Realty, LLC, 41 AD3d 804, 805; Ruttura & Sons Constr. Co. v Petrocelli Constr., 257 AD2d 614, 615). Moreover, the plaintiff filed a note of issue, failed to demand additional discovery within 20 days of the depositions as provided in the parties' discovery stipulation, and did not make any application to compel discovery until she cross-moved in opposition to the MTA/LIRR's motion. In such an instance, a claim of incomplete [*3]discovery will not defeat a prima facie showing of entitlement to summary judgment (see Guarino v Mohawk Containers Co., 59 NY2d 753; Matuszak v B.R.K. Brands, Inc., 23 AD3d 628).

Menezes v Khan, 2009 NY Slip Op 07991 (App. Div., 2nd, 2009)

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 did not address the plaintiff's claim, clearly set forth in his bill of particulars, that he sustained a medically-determined injury or impairment of a nonpermanent nature which prevented him from performing substantially all of the material acts which constituted his usual and customary daily activities for not less than 90 days during the 180 days immediately following the subject accident (see Negassi v Royle, 65 AD3d 1311; Alvarez v Dematas, 65 AD3d 598; Rahman v Sarpaz, 62 AD3d 979, 980; Smith v Quicci, 62 AD3d 858, 859). The plaintiff alleged in his bill of particulars that he missed three months of work as a result of the accident, and the defendants' neurologist and orthopedist were both advised of this allegation. However, neither of these experts, who did not examine the plaintiff until more than three years after the accident, related his findings to the 90/180 day category of serious injury. The affirmed medical reports of the defendants' radiologist also failed to establish that the plaintiff did not sustain a serious injury as a result of the accident. Although the radiologist opined that the plaintiff had not suffered any traumatic injury to his cervical and lumbar spines, her reports did not address any of the other injuries alleged in the plaintiff's bill of particulars, including bilateral shoulder and knee injuries (see Takaroff v A.M. USA, Inc., 63 AD3d 1142, 1143; Rahman v Sarpaz, 62 AD3d at 980; Delayhaye v Caledonia Limo & Car Serv., Inc., 61 AD3d 814, 815; Carr v KMO Transp., Inc., 58 AD3d 783, 784-785; Jensen v Nicmanda Trucking, Inc., 47 AD3d 769, 770). [*2]

Since the defendants did not sustain 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 Takaroff v A.M. USA, Inc., 63 AD3d at 1144; Rahman v Sarpaz, 62 AD3d at 980).

And, make sure to attach all the pleadings..

Fishkin v Feinstein, 2009 NY Slip Op 08782 (App. Div., 2nd, 2009)

The Supreme Court properly denied Feinstein's motion for summary judgment. As an initial matter, the plaintiff correctly contends that Feinstein was not entitled to summary judgment since the papers she submitted in support of her motion failed to include copies of all of the pleadings filed in the action, as required by CPLR 3212(b) (see Wider v Heller, 24 AD3d 433; Sted Tenants Owners Corp. v Chumpitaz, 5 AD3d 663; Deer Park Assoc. v Robbins Store, 243 AD2d 443; Lawlor v County of Nassau,166 AD2d 692).

The bold is mine.

CPLR § 5225(a)(b)

CPLR § 5225 Payment or delivery of property of judgment debtor
(a) Property in the possession of judgment debtor
(b) Property not in the possession of judgment debtor

Buckeye Retirement Co., LLC, Ltd. v Quattrocchi, 2009 NY Slip Op 08576 (App. Div., 2nd, 2009)

CPLR 5225(a) requires that notice of a motion to compel the turn over of personal property "shall be served on the judgment debtor in the same manner as a summons or by registered or certified mail, return receipt requested" (CPLR 5225[a]). The plaintiff's affidavit of service revealed that the judgment debtor was served by regular mail, rather than by a method set forth in CPLR 5225(a). The failure to properly serve notice upon the defendant of the plaintiff's motion pursuant to CPLR 5225(a) to compel the defendant to turn over to the Sheriff certain personal property in his possession deprived the court of jurisdiction to entertain the motion (see Zaidi v New York Bldg. Contrs., Ltd., 61 AD3d 747, 748; Daulat v Helms Bros., Inc., 32 AD3d 410, 411; Golden v Golden, 128 AD2d 672, 673; see also Banco Popular N. Am. v Philian Designs LLC, 48 AD3d 368, 369; Oil City Petroleum Co. v Fabac Realty Corp., 70 AD2d 859, affd on other grounds 50 NY2d 853). Accordingly, the Supreme Court properly denied the plaintiff's motion pursuant to CPLR 5225(a).

Matter of Signature Bank v HSBC Bank USA, N.A., 2009 NY Slip Op 08626 (App. Div., 2nd, 2009)

Faced with the judgment debtor's continuous default in making payments to satisfy the money judgment, the petitioner commenced the instant proceeding pursuant to CPLR 5225(b) against the judgment debtor, her bank, HSBC Bank USA, N.A. (hereinafter HSBC), and the judgment debtor's daughters, who were named on the subject joint bank accounts, inter alia, to direct HSBC to turn over the funds of the joint bank accounts to the petitioner. Both of the judgment debtor's daughters defaulted in answering the petition. The Supreme Court granted that branch of the petition which was to direct HSBC to turn over the funds of those bank accounts to the petitioner. We affirm.

CPLR 5225(b) provides for an expedited special proceeding by a judgment creditor to recover "money or other personal property" belonging to a judgment debtor "against a person in possession or custody of money or other personal property in which the judgment debtor has an interest" in order to satisfy a judgment (Starbare II Partners v Sloan, 216 AD2d 238, 239). The judgment creditor is required to serve the petition upon the judgment debtor in the same manner as a summons in an action or [*2]by registered or certified mail, return receipt requested (see CPLR 5225[b]). Once a court has personal jurisdiction over the judgment debtor and bank, it can order the turn over of "money or other personal property," even property located out of the state (see Gryphon Dom. VI, LLC v APP Intl. Fin. Co. B.V., 41 AD3d 25, 31; Miller v Doniger, 28 AD3d 405; Starbare II Partners v Sloan, 216 AD2d at 239).

Even jointly owned assets are vulnerable to levy by a judgment creditor pursuant to CPLR 5225. "Generally, the deposit of funds into a joint account constitutes prima facie evidence of an intent to create a joint tenancy" (Matter of Richichi, 38 AD3d 558, 559; see Banking Law § 675[b]; Matter of Dubin, 54 AD3d 947, 949). However, at the same time, "the opening of a joint bank account creates a rebuttable presumption that each named tenant is possessed of the whole of the account so as to make the account vulnerable to levy of a money judgment by the judgment creditor of one of the joint tenants" (Tayar v Tayar, 208 AD2d 609, 610; see Viggiano v Viggiano, 136 AD2d 630, 631; Denton v Grumbach, 2 AD2d 420, 422; Banking Law § 675[b]).

"The presumption created by Banking Law § 675 can be rebutted by providing direct proof that no joint tenancy was intended or substantial circumstantial proof that the joint account had been opened for convenience only'" (Fragetti v Fragetti, 262 AD2d 527, 527, quoting Wacikowski v Wacikowski, 93 AD2d 885, 885; see Matter of Friedman, 104 AD2d 366, 367, affd 64 NY2d 743; Storozynski v Storozynski, 60 AD3d 754). If the presumption is rebutted, the judgment creditor's levy on the jointly owned bank account is effective only up to the actual interest of the judgment debtor in the account (see Viggiano v Viggiano, 136 AD2d at 631).

The Supreme Court properly directed HSBC to turn over the entirety of the subject joint bank accounts to the petitioner (see LR Credit 10, LLC v Welsh, 17 Misc 3d 1129[A]; Rappaport, Steele & Co., P.C. v JPMorgan Chase Bank, N.A., 13 Misc 3d 1203[A]; Velocity Invs., LLC/Citibank v Astoria Fed. Sav. & Loan, 12 Misc 3d 1184[A]; Ford Motor Credit Co. v Astoria Fed., 189 Misc 2d 475, 477). It is undisputed that neither of the judgment debtor's daughters appeared or answered the proceedings, or in any manner challenged the petition's allegations to claim any portion of the joint bank accounts (see Rokina Opt. Co. v Camera King, 63 NY2d 728, 730; McClelland v Climax Hosiery Mills, 252 NY 347, 351; Otto v Otto, 150 AD2d 57, 65; Ford Motor Credit Co. v Astoria Fed., 189 Misc 2d at 476). The judgment debtor's mere conclusory assertions are patently insufficient to rebut her ownership of the funds in the bank accounts for purposes of the turnover proceedings (see Tayar v Tayar, 208 AD2d at 610). Under these circumstances, the Supreme Court properly determined that the petitioner was entitled to the turnover of the funds contained in the two joint bank accounts.

To the extent the judgment debtor raises an issue concerning that branch of the petition which was to direct HSBC to turn over the contents of a safe deposit box in the name of the judgment debtor, that issue remains pending and undecided, and, therefore, is not properly before this Court (see Katz v Katz, 68 AD2d 536, 542-543).

The bold is mine.

These Are Not The Droids You’re Looking For (Discovery: CPLR § 3126)

CPLR § 3126 Penalties for refusal to comply with order or to disclose

Emmitt v City of New York, 2009 NY Slip Op 07331 (App. Div., 1st, 2009)

A party that disobeys court-ordered disclosure is subject to preclusion of relevant portions of its evidence (CPLR 3126). The nature of the sanction lies generally within the broad discretion of the court, and should not be disturbed absent an improvident exercise thereof (Gross v Edmer Sanitary Supply Co., 201 AD2d 390 [1994]). In its answer, defendant raised as an affirmative defense that any and all hazards, defects and dangers were of such an open, obvious and apparent nature that they were or should have been known to plaintiff, thus rendering her injuries attributable to her own culpable conduct. There is no reason to bar defendant from pursuing that defense. However, it was not an improvident exercise of discretion to preclude defendant from offering evidence as to the Con Edison permits. We modify only to clarify that it will be conclusively presumed at trial that defendant created or had notice of the trench involved in the accident. This relief will ameliorate the prejudice plaintiff has suffered as a result of defendant’s failure to timely disclose the Con Ed permits. Defendant’s ability to [*2]defend the suit by attributing the accident to plaintiff’s own lack of due care is not impaired.

Minaya v Duane Reade Intl., Inc., 2009 NY Slip Op 06767 (App. Div., 1st, 2009)

In sanctioning defendant for failing to preserve critical evidence, the motion court appropriately exercised its “broad discretion to provide . . . relief to the party deprived of the lost evidence” (Ortega v City of New York, 9 NY3d 69, 76 [2007]). Defendant failed to preserve a video recording that may have shown the stairway before and during plaintiff’s accident. The unavailability to plaintiff of the video recording may have impaired his ability to establish that defendant possessed the requisite notice of a defective condition on the stairs. Under these circumstances, however, the extreme sanction of preclusion is not warranted “to restore balance to the matter” (Baldwin v Gerard Ave., LLC, 58 AD3d 484 [2009]). Rather, an adverse inference is sufficient to prevent defendant from using the absence of the videotape to its own advantage (Tomasello v 64 Franklin, Inc., 45 AD3d 1287 [2007]).

Panagiotou v Samaritan Vil., Inc., 2009 NY Slip Op 07811 (App. Div., 2nd, 2009)

The plaintiffs failed to serve a responsive bill of particulars within the 30-day time limit set in the conditional order of preclusion entered February 25, 2008. The order, therefore, became absolute (see Gilmore v Garvey, 31 AD3d 381; Echevarria v Pathmark Stores, Inc., 7 AD3d 750, 751). To avoid the adverse impact of the conditional order of preclusion, the plaintiffs were required to demonstrate a reasonable excuse for their failure to comply and a meritorious cause of action (see State Farm Mut. Auto Ins. Co. v Hertz Corp., 43 AD3d 907, 908; Echevarria v Pathmark Stores, Inc., 7 AD3d at 751). The plaintiffs failed to make such a showing. Since the order of preclusion prevents the plaintiffs from establishing a prima facie case, the Supreme Court properly granted the defendants’ separate motions for summary judgment dismissing the complaint (see Calder v Cofta, 49 AD3d 484; State Farm Mut. Auto Ins. Co. v Hertz Corp., 43 AD3d at 908).

Bender, Jenson & Silverstein, LLP v Walter, 2009 NY Slip Op 08572 (App. Div., 2nd, 2009)

Since the defendant failed to establish that she made any effort to comply with the plaintiff’s repeated discovery requests, the Supreme Court properly considered her lack of cooperation to be willful and contumacious, and properly conditionally granted the plaintiff’s motion to preclude her from introducing the requested documents in evidence (see Kihl v Pfeffer, 94 NY2d 118; D’Aloisi v City of New York, 7 AD3d 750; Brooks v City of New York, 6 AD3d 565; Donovan v City of New York, 239 AD2d 461; cf. Scardino v Town of Babylon, 248 AD2d 371).

In light of the defendant’s noncompliance with discovery, the Supreme Court properly denied her motion to quash certain subpoenas which had been served on nonparty witnesses, on the basis that the information sought was otherwise unobtainable (see Hamilton v Touseull, 48 AD3d 520; Matter of Validation Review Assoc. [Berkuny Schimel], 237 AD2d 614; cf. People v Marin, 86 AD2d 40).

The bold is mine.

CPLR R. 3025 Amend and Conform–Not Too Difficult

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

Schuyler v Perry, 2009 NY Slip Op 06825 (App. Div., 2nd, 2009)

The Supreme Court improvidently exercised its discretion in granting Perry’s motion for leave to serve an amended answer, as the first proposed amended answer was palpably insufficient and patently devoid of merit, insofar as the counterclaim contained therein was based on allegations of the plaintiff’s active or primary negligence or the plaintiff’s vicarious liability for DiMicco’s conduct, and the second proposed amended answer was palpably insufficient and patently devoid of merit, insofar as the counterclaim contained therein was based on allegations of the plaintiff’s vicarious liability for DiMicco’s conduct.

Moyse v Wagner, 2009 NY Slip Op 07808 (App. Div., 2nd, 2009)

Leave to amend a pleading “shall be freely given upon such terms as may be just” (CPLR 3025[b]; see Edenwald Contr. Co. v City of New York, 60 NY2d 957, 959) as long as the proposed amendment is not palpably insufficient or devoid of merit (see Bolanowski v Trustees of Columbia Univ. In City of N.Y., 21 AD3d 340, 341; Glaser v County of Orange, 20 AD3d 506; Ortega v Bisogno & Meyerson, 2 AD3d 607, 609). Accordingly, in considering a motion for leave to amend, it is incumbent upon the court to examine the sufficiency and merits of the proposed amendment (see Hill v 2016 Realty Assoc., 42 AD3d 432, 433; see e.g. Abrahamian v Tak Chan, 33 AD3d 947, 949; Fisher v Braun, 227 AD2d 586, 587).

Matter of Simonds v Kirkland, 2009 NY Slip Op 08662 (App. Div., 4th, 2009)

The mother also will not be heard to contend that the court erred in permitting the amendment of the pleadings to conform to the evidence presented at the hearing on the petition, inasmuch as the record establishes that the mother’s attorney consented to that amendment (see McLaughlin v City of New York, 294 AD2d 136; see also Atweh v Hashem, 284 AD2d 216, 217). In any event, “[t]he court has discretion to permit an amendment to conform the pleadings to the proof . . . [and i]t is an abuse of discretion to [withhold such permission] unless the opposing party can allege demonstrable and real surprise or prejudice” (General Elec. Co. v A. C. Towne Corp., 144 AD2d 1003, 1004, lv dismissed 73 NY2d 994; see CPLR 3025 [c]). Even assuming, arguendo, that the mother was in fact “an opposing party,” we conclude that she failed to demonstrate that she sustained any “real surprise or prejudice” arising from the amendment (General Elec. Co., 144 AD2d at 1004).

The bold is mine.

CPLR R. 3211(a)(1) Affidavits Don’t Count

CPLR R. 3211 is a curious rule. I wrote three paragraphs, but after I read them, I realized that I was only complicating things. Besides being a quirky rule, it is an extremely complicated rule.

Now consider Herrnsdorf v Bernard Janowitz Constr. Corp., 2009 NY Slip Op 07984 (App. Div., 2nd, 2009).

The Supreme Court properly denied that branch of Utica First’s motion which was pursuant to CPLR 3211(a)(1) to dismiss the third-party complaint. “[I]n order for a complaint to be dismissed pursuant to CPLR 3211(a)(1), the evidence submitted must resolve [ ] all factual issues as a matter of law, and conclusively dispose of the plaintiff’s claim'” (Del Pozo v Impressive Homes, Inc., 29 AD3d 621, 622, quoting Berger v Temple Beth-El of Great Neck, 303 AD2d 346, 347). Utica First failed to conclusively demonstrate that Janowitz was not an additional insured to the [*3]insurance policy. Additionally, Utica First could not rely on affidavits in support of its motion to dismiss pursuant to CPLR 3211(a)(1) because they do not constitute documentary evidence (see Berger v Temple Beth-El of Great Neck, 303 AD2d at 347).

A Brief CPLR R. 5015 Roundup and CPLR R. 2214(d) Appears For The First Time In this Blog.

CPLR R. 5015 Relief from judgment or order
(a) On motion
(1) excusable default…
(2) newly-discovered evidence…
(3) fraud, misrepresentation, or other misconduct of an adverse party
(4) lack of jurisdiction to render the judgment or order
(5) reversal, modification or vacatur of a prior judgment or order upon which it is based

CPLR R. 2214 Motion papers; service; time
(d) Order to show cause

MBF Leasing, LLC v Sisco, 25 Misc 3d 128(A) (App. Term, 1st, 2009)

Civil Court correctly denied, without a traverse hearing, that branch of defendant's motion seeking vacatur of the default judgment and dismissal of the complaint for lack of personal jurisdiction under CPLR 5015(a)(4) because defendant failed to sufficiently refute the factual averments contained in plaintiff's process server's affidavit of service. Defendant is nonetheless entitled to vacatur of the default judgment and an opportunity to answer the action on the merits. In light of defendant's potentially meritorious defense to the action (see Pludeman v N. Leasing Sys., 10 NY3d 486 [2008]), the absence of any discernable prejudice to plaintiff (which did not oppose defendant's motion and has not filed a respondent's brief on this appeal), defendant's showing that the default was not willful, and our preference for resolving actions on the merits, we vacate the default judgment under our "inherent discretionary power" to relieve defendant of his default "for sufficient reason and in the interests of substantial justice" (Woodson v Mendon Leasing Corp., 100 NY2d 62, 68 [2003]; see Siegel, NY Practice § 426, 725 [4th ed]).

Although the court in its discretionary power may vacate a default even though the party did not satisfy any of the conditions in CPLR R. 5015, I don't understand why the court would say that the defendant was entitled to vacatur. Going by Webster's definition of entitle, the word hardly seems to fit. Vacatur was a gift in this case. Also interesting is that the defendant's motion to vacate was unopposed. Neither was the appeal. Unless defendant attached plaintiff's affidavit or service, how was it before the lower court? Judicial Notice?

Speaking of weird…

Merriwether v Osborne, 2009 NY Slip Op 07602 (App. Div., 2nd, 2009)

By order dated May 22, 2007, the Supreme Court granted, apparently without opposition, the defendants' separate motions for summary judgment dismissing, inter alia, the complaint insofar as asserted against them, and a judgment dismissing the complaint was entered subsequently. Although the plaintiff was duly served with both the order and the judgment with notice of entry, he neither appealed nor moved to vacate. Nearly two years later, the Supreme Court, sua sponte, without explanation, vacated the order dated May 22, 2007, and, in effect, the judgment, and denied the defendants' motions for summary judgment.

On appeal, the defendants contend that the Supreme Court exceeded its authority in, sua [*2]sponte, vacating the order and, in effect, the judgment. We agree.

"A trial court has no revisory or appellate jurisdiction, sua sponte, to vacate its own order or judgment" (Adams v Fellingham, 52 AD3d 443, 444-445; see Armstrong Trading, Ltd. v MBM Enters., 29 AD3d 835, 836; Matter of Owens v Stuart, 292 AD2d 677, 678-679; cf. Liss V Trans Auto Sys., 68 NY2d 15, 20). Here, the court exceeded its powers by its unexplained sua sponte attempt to reconsider the summary judgment motions anew almost two years after the case was dismissed by judgment (see Matter of Owens v Stuart, 292 AD2d at 679).

WTF?

Wells Fargo Bank, N.A. v Leiba, 2009 NY Slip Op 07833 (App. Div., 2nd, 2009)

The Supreme Court properly denied the motion of the defendant Lisa Morris to vacate a judgment of foreclosure and sale dated October 27, 2005, as she failed to serve the order to show cause by which the motion was initiated in the manner specified, and within the time provided (see CPLR 2214[d]; Alden Personnel, Inc. v David, 38 AD3d 697, 698).

A bad employee can be a reasonable excuse. See below.

Rodriguez v Rodriguez, 2009 NY Slip Op 08150 (App. Div., 1st, 2009)

Defendant's attorney's representation that a former employee had been misdirecting or misplacing mail provides a reasonable excuse for his failure to present such evidence of law office failure on defendant's original motion to vacate the default judgment as well as his failure to appear in court on various dates (see Solowij v Otis Elev. Co., 260 AD2d 226 [1999]). Defendant's affidavit shows a meritorious defense.

The bold is mine.

No New Arguments in the Reply, and Res Judicata

Djoganopoulos v Polkes, 2009 NY Slip Op 08173 (App. Div., 2nd, 2009)

Where a dismissal does not involve a determination on the merits, the doctrine of res judicata does not apply (see Maitland v Trojan Elec. & Mach. Co., 65 NY2d 614; Sclafani v Story Book Homes, 294 AD2d 559, 559-560). The complaint in the prior related action was dismissed on the ground that it did "not contain any factual averments against" Jonathan D. Polkes, Ellen G. Polkes, and Megan Strecker. "Rather, the conduct complained of involves only the Village [of Westhampton Dunes and its officials]" (Feder v Polkes,AD3d [decided herewith]). Therefore, the dismissal was not on the merits, and the doctrine of res judicata does not apply in the instant case (see Maitland v Trojan Elec. & Mach. Co., 65 NY2d 614).

We do not consider the defendants' contention that the plaintiffs failed to join necessary parties since it was improperly raised for the first time in their reply papers before the Supreme Court (see Crummell v Avis Rent A Car Sys., Inc., 62 AD3d 825; Luft v Luft, 52 AD3d 479, 480; Medugno v City of Glen Cove, 279 AD2d 510, 511-512).

Hantz v Hillman Hous. Corp., 2009 NY Slip Op 07933 (App. Div., 1st, 2009)

The tenant's second action seeking to compel the Board to grant his request to install an in-wall air conditioning system arose out of the same transaction, and facts, as had been considered in the tenant's prior litigation on the issue. The nature of tenant's proposed air conditioning installation and reasons for its need (i.e., medical, aesthetics, etc.) remained unchanged from the facts available at the time of the Board's original July 2005 determination, as well as at the time of the aforementioned prior litigation. Whether a mistaken factual assumption by the Board in considering Hantz's first application led to an errant determination may not be revisited based upon re-submission of the same facts, pertaining to the same transaction, as had been originally considered by the Board (see e.g. Mchawi v State Univ. of N.Y., Empire State Coll., 248 AD2d 111, 112 [1998], lv denied 92 NY2d 804 [1998]). The applicable statute of limitations period for challenging the Board's 2005 determination having since expired, Hantz's alleged new claim based on the same facts as those previously considered was properly dismissed on res judicata grounds (see e.g. Marinelli Assoc. v Helmsley-Noyes Co., 265 AD2d 1, 4-5 [2000]).

Jericho Group Ltd. v Midtown Dev., L.P., 2009 NY Slip Op 07946 (App. Div., 1st, 2009)

The two actions are based on the same transaction, namely the sale of real property, and the prior action was dismissed on the merits, and not merely because of technical pleading defects (see Heritage Realty Advisors, LLC v Mohegan Hill Dev., LLC, 58 AD3d 435 [2009], lv denied 12 NY3d 830 [2009]; Lampert v Ambassador Factors Corp., 266 AD2d 124 [1999]). Even though this Court, in granting defendant Midtown's motion to dismiss the complaint in the prior action, did not state that it was dismissing the action on the merits (32 AD3d 294 [2006]), an examination of our ruling clearly demonstrates that the claims were dismissed on the merits (see Feigen v Advance Capital Mgt. Corp., 146 AD2d 556, 558 [1989]).

Contrary to plaintiff's contention, this Court's subsequent order denying its motion to, inter alia, vacate the judgment of dismissal (47 AD3d 463 [2008], lv dismissed 11 NY3d 801 [2008]), has preclusive effect for purposes of res judicata, especially since it resulted in the reentry of the judgment of dismissal. This Court's ruling that plaintiff "fails to show fraud in the underlying transaction" (47 AD3d at 464), was not mere dicta and acts as a bar to plaintiff's claim of willful and deliberate breach of the contract (see O'Brien v City of Syracuse, 54 NY2d 353, 357-358 [1981]). Indeed, the claims are based on the same alleged misconduct, namely, defendants' failure to provide documents on an oil spill near the subject property and information regarding the nonexistence of certain exhibits referenced in the contract of sale. With respect to plaintiff's claims that it is entitled to specific performance because it cancelled the contract as a result of defendants' alleged willful and deliberate misconduct and because its attorney did not have the authority to cancel the contract, those claims are barred under the doctrine of res judicata because they could have been raised in the prior action (see Fifty CPW Tenants Corp. v [*2]Epstein, 16 AD3d 292, 293-294 [2005]).

Because plaintiff had reviewed the documents illustrating defendants' alleged fraud prior to commencing the first action, it cannot elude issue or claim preclusion "under the rubric of fraud" (Smith v Russell Sage Coll., 54 NY2d 185, 193 [1981]).

Schloss v Jones, 2009 NY Slip Op 08207 (App. Div., 2nd, 2009)

The doctrine of res judicata operates to preclude the reconsideration of claims actually litigated and resolved in a prior action, as well as claims for different relief against the same party which arise out of the same factual grouping or transaction, and which should have or could have been resolved in the prior action (see Mahler v Campagna, 60 AD3d 1009, 1011; Matter of Kafka v Meadowlark Gardens Owners, Inc., 34 AD3d 676, 677). In the instant action, the plaintiff sets forth the same allegations that were or could have been resolved in a prior action. Accordingly, the Supreme Court properly granted that branch of the defendants' motion which was to dismiss the complaint as barred by the doctrine of res judicata (see QFI, Inc. v Shirley, 60 AD3d 656, 657; Lefkowitz v Schulte, Roth & [*2]Zabel, 279 AD2d 457; Pappas v Cerrone, 281 AD2d 608).

The bold is mine.

CPLR R. 3117 and the Missing Witness Charge

CPLR R. 3117 Use of depositions
(a) Impeachment of witnesses; parties; unavailable witness
(4) the deposition of a person authorized to practice medicine may be used by any party without the necessity of showing unavailability or special circumstances, subject to the right of any party to move pursuant to section 3103 to prevent abuse

Lauro v City of New York, 2009 NY Slip Op 08186 (App. Div., 2nd, 2009)

Additionally, contrary to the defendants' contentions, the Supreme Court properly gave a missing witness instruction (see Taveras v Martin, 54 AD3d 667; Brown v City of New York, 50 AD3d 937). " [W]hen a doctor who examines an injured plaintiff on the defendant's behalf does not testify at trial, an inference generally arises that the testimony of such witness would be unfavorable to the defendant. The defendant may defeat this inference by demonstrating that the testimony would be merely cumulative, the witness was unavailable or not under the defendant's control, or the witness would address matters not in dispute'" (Hanlon v Campisi, 49 AD3d 603, 604, quoting Brooks v Judlau Contr., Inc., 39 AD3d 447, 449, revd 11 NY3d 204). Here, the defendants failed to defeat the inference (see Taveras v Martin, 54 AD3d 667; Brown v City of New York, 50 AD3d 937).

How do you go about getting the charge. Taveras is instructive,

The Supreme Court did not err in granting the defendant's request for a missing-witness charge for Leo F. Taveras. A party seeking a missing-witness charge must "promptly notify the court that there is an uncalled witness believed to be knowledgeable about a material issue pending in the case, that such witness can be expected to testify favorably to the opposing party and that such party has failed to call him to testify" (People v Gonzalez, 68 NY2d 424, 427 [1986]). As the party opposing the missing-witness charge, the appellant failed to demonstrate that Leo F. Taveras was "unavailable, not under [his] control, or that [his] testimony would be cumulative" (Adkins v Queens Van-Plan, 293 AD2d 503, 504 [2002]). Leo F. Taveras was the operator of the vehicle in which the appellant was a passenger and he is also the appellant's brother. Thus, it is clear that Leo F. Taveras is favorably disposed to the appellant and under his control (see People v Marsalis, 22 AD3d 866, 868-869 [2005]). The appellant failed to demonstrate that Leo F. Taveras remained ill after his hospital release or was otherwise unavailable (compare People v Turner, 294 AD2d 192 [2002]).

And bringing it on home is Brown,

Contrary to the defendants' contention, the Supreme Court properly granted the plaintiffs' request for a missing witness charge with respect to the defendant Julio A. Torro, the driver of the vehicle that allegedly struck the van of the injured plaintiff Joe S. Brown. Torro, who at all relevant times was represented by counsel, and who had previously given deposition testimony, inexplicably failed to appear at the trial to testify. A jury may, but is not required to, draw the strongest inference that the opposing evidence permits against a party who fails to testify at trial (see Crowder v Wells & Wells Equip., Inc., 11 AD3d 360, 361 [2004]; Farrell v Labarbera, 181 AD2d [*2]715, 716 [1992]; see also Noce v Kaufman, 2 NY2d 347, 353 [1957]).

What happens in cases where a party takes the testimony of a non-treating doctor, perhaps a IME doctor or a peer review doctor, and uses that deposition at trial under CPLR R. 3117(a)(4)? And assume the doctor is available to testify. And of course, unavailable doesn't mean that the doctor might have something better to do that day. What then? Get your missing witness charge (PJI 1:75). To sort of conclude: Can you use the deposition? Probably. Can the other side get a missing witness charge? Probably. The next question is: Is it worth it? I'll get into that in a minute.

*intermission* Or, for the few no-fault types who read this blog, consider the case of the re-peer. */intermission*

A couple of months ago I tried to do some research on 3117(a)(4). I was more or less trying to understand the impetus behind the provision. As it turns out, I'm terrible at researching this. I had a research librarian trying to help me out and I really couldn't get anything on it. That said, I'm pretty sure it is a patient treating mechanism, not a money saving mechanism. The only reason to have a rule that allows for doctors' depositions to be used at trial is to keep them out of court and in their offices, treating patients. Lately, a few insurance companies have been using it as a money saving mechanism. Have one doctor in their (ins co lawyer's) office all day doing depositions for various cases–the doctors get paid a fixed (lower) rate, and the insurance companies don't have to pay the doctors to appear at trial. At trial, the insurance company lawyer reads the deposition into the record. There is no doubt that CPLR R. 3117(a)(4) is being used as a money saving mechanism. From experience, I can tell you that the doctors are available to testify. There are days where they are in court to testify on over five cases for various insurers. Do I blame them? No, everyone needs to make a living. The point is, they aren't treating patients. The depositions aren't allowing them to treat more patients. They still come to court and testify on cases where depositions weren't held.

Like I said, and I could be wrong (but I doubt it) CPLR R. 3117(a)(4) was not intended to be a money saving mechanism.

Finally, and I alluded to this before, is this something a party really wants to do? Depositions are a completely different animal than trials. It's part of discovery. Accordingly, there is a lot of leeway. All those questions that you could never get away with at trial; you can ask them. If the insurance company refuses to allow their doctor to answer and bust the deposition, well, that will be their problem. Th
ere is a lot of interplay between IME doctors, Peer Review doctors, the vendors that work in-between the doctors and the insurance companies, and the insurance companies. Do you really want these questions asked? Do you want the answers memorialized? I'd guess no. But, I could always be wrong. In the end, it could wind up costing far more than it would save.

Finally, using this rule is a ballsy move. One that most parties wouldn't make but for desperation. We can all agree that a jury wouldn't like it. Would a Judge? Would anyone feel comfortable telling the trier of fact, especially one that went to law school, and one who is smarter than your average Joe that, "Yes your honor, I didn't think it important that you see the witness. No, you don't have to worry about the witness' demeanor. It's fine, trust me". And if the other side asked for a missing witness charge, how would you respond?

Something to think about.

Technorati Tags: Depositions

CPLR § 3218(b) Judgment by confession not filed within 3 years

CPLR § 3218 Judgment by confession

Shasho v Pruco Life Ins. Co. of N.J., 2009 NY Slip Op 08000 (App. Div., 2nd, 2009)

The plaintiff seeks a preliminary injunction based, in part, on her
contention that the confession of judgment was obtained in connection
with a usurious promissory note. "No law regulating the maximum rate of
interest which may be charged, taken or received shall apply to any
loan or forebearance in the amount of two million five hundred thousand
dollars or more" (General Obligations Law § 5-501[6][b]). Thus, the
plaintiff failed to establish a likelihood of success on her claim that
a promissory note that she and her late husband executed in favor of
the defendant, and upon which the confession of judgment was
predicated, is usurious, as the face of the note provides that the
amount owed was $3,500,000 (see General Obligations Law 5-501[6][b]; Tides Edge Corp. v Central Fed. Sav., 151 AD2d 741; see also Ujueta v Euro-Quest Corp., 29 AD3d 895; Hochman v LaRea, 14
AD3d 653, 654). Moreover, the confession of judgment was signed and
notarized on December 31, 2005, and, thus, at the time that the Supreme
Court determined that branch of plaintiff's motion which was for a
preliminary injunction, the three-year period for filing the confession
of judgment (see CPLR 3218[b]) had yet to lapse. Consequently,
the Supreme Court properly denied that branch of the plaintiff's motion
which was for a preliminary injunction enjoining the defendant from
entering, filing, and enforcing the confession of judgment. Further,
the Supreme Court properly permitted the release of the proceeds from
certain life insurance policies to the defendant.

Nonetheless, the defendant failed to file the confession of
judgment by December 31, 2008, and thus failed to file it within three
years after the plaintiff's affidavit of confession was executed.
Accordingly, the confession of judgment became void after that date (see CPLR 3218[b]; Ray v Ray, 61
AD3d 442, 443). Thus, in the order dated March 12, 2009, the Supreme
Court erred in granting that branch of the defendant's application
which was, in effect, to permit him to enter, file, and enforce the
confession of judgment.

The bold is mine

Forum Non Con: CPLR R. 327

CPLR R. 327 Inconvenient forum

Tiger Sourcing (HK) Ltd. v GMAC Commercial Fin. Corporation-Canada, 2009 NY Slip Op 07828 (App. Div., 2nd, 2009)

CPLR 327 "permits a court to stay or dismiss such actions where it is determined that the action, although jurisdictionally sound, would be better adjudicated elsewhere" (Islamic Republic of Iran v Pahlavi, 62 NY2d 474, 478-479, cert denied 469 US 1108). The defendant bears the burden in a motion to dismiss on the ground of forum non conveniens to "demonstrate relevant private or public interest factors which militate against accepting the litigation" (id.). On such a motion, the Supreme Court is to weigh the parties' residencies, the location of the witnesses and any hardship caused by the choice of forum, the availability of an alternative forum, the situs of the action, and the burden on the New York court system (see Prestige Brands, Inc. v Hogan & Hartson, LLP, 65 AD3d 1028; Turay v Beam Bros. Trucking, Inc., 61 AD3d 964, 966). No one factor is dispositive (see Turay v Beam Bros. Trucking, Inc., 61 AD3d at 966; Brinson v Chrysler Fin., 43 AD3d 846, 848). The Supreme Court's determination should not be disturbed unless the court improvidently exercised its discretion or failed to consider the relevant factors (see Smolik v Turner Constr. Co., 48 AD3d 452, 453-454; Brinson v Chrysler Fin., 43 AD3d at 848).

Under the circumstances of this case, the Supreme Court providently exercised its discretion in granting that branch of the defendants' joint motion which was to dismiss the complaint on the ground of forum non conveniens (see Islamic Republic of Iran v Pahlavi, 62 NY2d 474; Prestige Brands, Inc. v Hogan & Hartson, LLP, 65 AD3d 1028; Turay v Beam Bros. Trucking, Inc., 61 AD3d 964; Smolik v Turner Constr. Co., 48 AD3d 452; Stravalle v Land Cargo, Inc., 39 AD3d 735, 736).

The bold is mine.