[App Div 2d Dept]

Post Appeal Motion to Renew: CPLR R. 2221(e)

CPLR R. 2221(e) Motion for Leave to Renew

Estate of Anna K. Essig v 5670 58 St. Holding Corp., 2009 NY Slip Op 07581 (App. Div., 2nd, 2009)

On prior appeals, this Court, inter alia, affirmed an order granting that branch of the plaintiffs' prior motion which was for summary judgment on their cause of action for a judgment declaring that they are the owners of 225 shares of the capital stock of the defendant 5670 58 Street Holding Corp. and affirmed an order denying the respondents' prior motion for leave to renew their opposition to that branch of the plaintiffs' prior motion (see Estate of Essig v 5670 58 St. Holding Corp., 50 AD3d 948). Thereafter, the respondents moved again for leave to renew based upon documents discovered four months earlier. The Supreme Court granted the motion and, upon renewal, vacated the judgment entered August 7, 2008, and denied that branch of the plaintiffs' prior motion which was for summary judgment on their declaratory judgment cause of action. We reverse.

Pursuant to CPLR 2221(e), a motion for leave to renew "shall be based upon new facts not offered on the prior motion that would change the prior determination . . . and shall contain reasonable justification for the failure to present such facts on the prior motion" (CPLR 2221[e][2],[3]). Moreover, while "a court of original jurisdiction may entertain a motion to renew or to vacate a prior order or judgment on the ground of newly discovered evidence even after an appellate court has affirmed the original order or judgment . . . on [a] postappeal motion [to renew] the [movant] bears a heavy burden of showing due diligence in presenting the new evidence to the [*2]Supreme Court in order to imbue the appellate decision with a degree of certainty" (Levitt v County of Suffolk, 166 AD2d 421, 422-423 [citations omitted][emphasis added]). Here, the respondents failed to offer a reasonable explanation for their failure to present the "new facts" in conjunction either with their opposition to that branch of the plaintiffs' prior motion which was for summary judgment on their declaratory judgment cause of action or with their first motion for leave to renew (see Elder v Elder, 21 AD3d 1055; Renna v Gullo, 19 AD3d 472, 473). Accordingly, the respondents' motion for leave to renew should have been denied.

The bold is mine.

It’s almost impossible to wiggle your way out of a stipulation–CPLR R. 2104

Far more parties are finding their stipulations to be oppressive than in the past few months. I guess that's not true, but there are more appellate decisions on the issue than there have been in the past few months. And that's close enough for me. One of the benefits of blogging is that I have the opportunity to notice patterns in appellate law as it develops. Eventually I hope to see one. But for now, I'll keep on noting the obvious. And hopefully, having made you read this, I've made you a little dumber than you were before. You're welcome.

CPLR R. 2104 Stipulations

ABA Consulting, LLC v Liffey Van Lines, Inc., 2009 NY Slip Op 07923 (App. Div., 1st, 2009)

Next, defendant urges that the settlement agreement should be
vacated on the ground of mutual mistake, arguing that the parties must
have contemplated reimbursement for tax arrears. However, while mutual
mistake may furnish grounds for vacating a written agreement, there is
a " heavy presumption that a deliberately prepared and executed written
instrument manifest[s] the true intention of the parties'" and the
"proponent of reformation must show in no uncertain terms, not only
that mistake or fraud exists, but exactly what was really agreed upon
between the parties'" (Chimart Assoc. v Paul, 66 NY2d 570, 574 [1986], quoting Backer Mfg. Corp. v Acme Quilting Co.,
46 NY2d 211, 219 [1978]). Defendant has not established that the
parties came to any agreement, or even contemplated the refund of
payments recouped by the taxing authorities, or that either had any
knowledge, at the time the settlement agreement was executed, that
defendant would be audited. Accordingly, the settlement agreement
cannot be vacated on the ground of mutual mistake.

Defendant next argues that the settlement agreement should be
vacated on the ground of unilateral mistake, contending that it was
induced to pay fees upon the mistaken belief that any audit reducing
its tax refunds would entitle it to a proportional refund or credit
from plaintiff. However defendant presents no evidence that plaintiff
fraudulently induced it to enter into the settlement agreement upon the
false representation that it would adjust its fees if additional taxes
were found due, as required for a finding that the contract was the
product of unilateral mistake (Rosen Auto Leasing, Inc. v Jacobs, 9 AD3d 798,
800 [2004]). In fact, the settlement agreement was an arm's length
transaction between businessmen who were represented by counsel, and
the terms of plaintiff's compensation was consistent with that set
forth in the parties original [*3]consulting agreement. We find no basis on this record for vacating that agreement (see Greater N.Y. Mut. Ins. Co. v United States Underwriters Ins. Co., 36 AD3d 441, 443 [2007]).

Dubi v Skiros Corp., 2009 NY Slip Op 07793 (App. Div., 2nd, 2009)

"Stipulations entered into in open court are favored by the courts and
are to be set aside only where there is cause sufficient to invalidate
a contract such as fraud, duress, collusion, or mistake" (Feuer v Darkanot, 36 AD3d 753, 753-754; see Ramnarain v Ramnarain, 46 AD3d 655; Hallock v State of New York, 64 NY2d 224, 230; Chernow v Chernow, 51 AD3d 705, 706; Feuer v Darkanot, 36 AD3d 753, 753-754; Desantis v Ariens Co., 17
AD3d 311). In order to vacate a stipulation on the ground of duress, a
party "must demonstrate that threats of an unlawful act compelled his
or her performance of an act which he or she had the legal right to
abstain from performing'" (Feuer v Darkanot, 36 AD3d at 754, quoting Polito v Polito, 121 AD2d 614, 614-615). "Generalized contentions that a party felt pressured by the court are insufficient" (Desantis v Ariens Co., 17 AD3d at 311; see Matter of Blackstock v Price, 51 AD3d 914; Ross v Clyde Beatty-Cole Bros. Circus, 26 AD3d 321, 322; Shuler v Dupree, 14 AD3d 548, 549; Cavalli v Cavalli, 226
AD2d 666, 667). In the present case, the record fails to support the
plaintiff's contention that the stipulation of settlement was the
product of duress.

Castellano v Castellano, 2009 NY Slip Op 07784 (App. Div., 2nd, 2009)

"Stipulations of settlement are favored by the courts and are not lightly cast aside" (Hallock v State of New York, 64 NY2d 224, 230; see Matter of Siegel, 29 AD3d 914; Shapira v Shapira, 283
AD2d 477, 478 ). "[A]n oral stipulation of settlement with respect to
property issues in a matrimonial action, if spread upon the record and
found to be fair and reasonable by the court, is not to be disturbed
absent a showing of one of the traditional' grounds for vacatur, e.g.,
fraud, duress, mistake or overreaching" (Zafran v Zafran, 28 AD3d 752, 753, quoting Harrington v Harrington, 103 AD2d 356, 359; see Korngold v Korngold, 26 AD3d 358; Leahy v Leahy, 9 AD3d 351, 352).

Applying these principles to the matter at bar, the Supreme
Court properly determined that the plaintiff failed to meet her burden
in seeking to set aside the parties' stipulation of settlement (see Dimino v Dimino, 39 AD3d 799, 800; Brennan-Duffy v Duffy, 22 AD3d 699; Jacobs v Jacobs, 234 AD2d 425), and failed to establish that the stipulation of settlement was the result of duress or [*2]overreaching on the part of the defendant (see Garner v Garner, 46 AD3d 1239, 1240; Rubin v Rubin, 33 AD3d 983, 985-986; Chambers v McIntyre, 5 AD3d 344, 345). Accordingly, the court correctly denied the motion to set aside the stipulation of settlement.

Montgomery Trading LLC v Siegel, 25 Misc 3d 128(A) (App. Term, 1st, 2009)

Civil Court properly denied tenants' motion to vacate the two-attorney, so-ordered
stipulation of settlement resolving the underlying nonpayment summary proceeding since tenants
failed to demonstrate legal cause for such relief, e.g., fraud, collusion, mistake or accident
(see Hallock v State of New York, 64 NY2d 224, 230 [1984]). The belated attempt by
tenants' incoming counsel to inject into the settled litigation an (unpleaded) rent forfeiture
defense not referenced in the stipulation does not provide a proper basis to vacate the binding
stipulation, assented to by tenants upon advice of prior counsel.

Parties should think long and hard before they enter into stipulations, because, once they do, it is extremely difficult to get out of it. It takes more than a sad story or hindsight. Much more.

In some cases, what you thought was an email, might very well be a stipulation. See, Williamson v Delsener, 2009 NY Slip Op 01333 (App. Div., 1s, 2009). Remember that.

NTA (CPLR § 3123) and Formal Judicial Admissions

Formal Judicial Admission

CPLR § 3123(a) Notice to admit; admission unless denied or denial excused

Zegarowicz v Ripatti, 2009 NY Slip Op 08004 (App. Div., 2nd, 2009)

Facts admitted by a party's pleadings constitute formal judicial admissions (see Falkowski v 81 & 3 of Watertown, 288
AD2d 890, 891; Prince, Richardson on Evidence § 8-215, at 523-524
[Farrell 11th ed]). Formal judicial admissions are conclusive of the
facts admitted in the action in which they are made (see Coffin v Grand Rapids Hydraulic Co., 136 NY 655).

Here, HVT made a formal judicial admission that it was listed as
owner on the certificate of title. A certificate of title is prima
facie evidence of ownership (see Vehicle and Traffic Law § 2108[c]; Switzer v Aldrich, 307 NY 56; Corrigan v DiGuardia, 166 AD2d 408; Salisbury v Smith, 115
AD2d 840). Although this presumption of ownership is not conclusive,
and may be rebutted by evidence which demonstrates that another
individual owned the vehicle in question (see Aronov v Bruins Transp., 294 AD2d 523; Dorizas v Island Insulation Corp., 254
AD2d 246), there was no evidence in the record to rebut that
presumption. "In reviewing a determination made after a nonjury trial,
the power of this Court is as broad as that of the trial court, and
this Court may render the judgment it finds warranted by the facts,'
bearing in mind that in a close case, the trial judge had the advantage
of seeing the witnesses" (Stevens v State of New York, 47 AD3d 624, 624-625, quoting Northern Westchester Professional Park Assoc. v Town of Bedford, 60
NY2d 492, 499). Based on our review of the evidence, judgment in favor
of the plaintiff and against HVT on the issue of liability is
warranted.

Morreale v Serrano, 2009 NY Slip Op 07992 (App. Div., 2nd, 2009)

The Supreme Court properly denied the plaintiff's motion for summary
judgment on the complaint, inasmuch as the plaintiff failed to meet his
initial burden of establishing, by admissible evidence, his prima facie
entitlement to judgment as a matter of law (see Alvarez v Prospect Hosp.,
68 NY2d 320, 324). To the extent that the plaintiff relied on the
defendant's response to his notice to admit, that notice improperly
sought the defendant's admissions to facts that went to "the heart of
the matter" (Lolly v Brookdale Univ. Hosp. & Med. Ctr., 45 AD3d 537, 537; see Glasser v City of New York,
265 AD2d 526). In light of our determination, we need not examine the
sufficiency of the papers submitted by the defendant in opposition to
the motion (see Winegrad v New York Univ. Med. Ctr., 64 NY2d 851, 853).

Sanctions (22 NYCRR 130-1.1) and Contempt. A non-party can’t be sanctioned under 130-1.1

Thankfully, these are short decisions.

22 NYCRR 130-1.1 Costs; sanctions

Singer v New York City Tr. Auth., 2009 NY Slip Op 07956 (App. Div., 1st, 2009)

Supreme Court providently exercised its discretion in denying
plaintiff's motion for sanctions, which was brought eight months after
the trial had concluded with a verdict in plaintiff's favor. While the
trial court had stated that plaintiff could move for sanctions
"whenever [she] wish[ed] to," this remark did not provide plaintiff
with an unlimited period of time to bring the motion, and as the court
found, the eight-month delay was unreasonable.

Ficus Invs., Inc. v Private Capital Mgt., L.L.C., 2009 NY Slip Op 07493 (App. Div., 1st, 2009)

Order, Supreme Court, New York County (Bernard J. Fried, J.), entered
September 10, 2008, which, to the extent appealed from as limited by
the brief, granted plaintiffs' motion to hold defendant Christopher
Chalavoutis in civil contempt, unanimously affirmed, with costs.

The record demonstrates that in February 2008 defendant was
instrumental in negotiating the conveyance of certain mortgages without
providing notice to plaintiffs, thereby disobeying an order of the
court, entered December 21, 2007, that prohibited defendant from taking
any action with respect to the subject mortgages "without first
providing 48 hour[] written notice" to counsel for plaintiffs. The
record further demonstrates that defendant's actions were calculated to
impair, impede or prejudice plaintiffs' rights (see Matter of McCormick v Axelrod, 59 NY2d 574, 583 [1983]).

Joan 2000, Ltd. v Deco Constr. Corp., 2009 NY Slip Op 07593 (App. Div., 2nd, 2009)

Pursuant to 22 NYCRR 130-1.1, sanctions may be imposed against a party or the attorney for a party for frivolous conduct (see
22 NYCRR 130-1.1[b]). Conduct is frivolous if it is completely without
merit in law or fact and cannot be supported by a reasonable argument
for the extension, modification, or reversal of existing law; it is
taken to primarily delay or prolong the resolution of the litigation,
or harass or maliciously injure another; or it asserts material factual
statements that are false (see 22 NYCRR 130-1.1[c]; Mascia v Maresco, 39 AD3d 504; Greene v Doral Conference Ctr. Assoc.,
18 AD3d 429, 431). Here, the Supreme Court improvidently exercised its
discretion in imposing a sanction upon Eric W. Berry, the attorney for
the defendant WBP Central Associates, LLC, as his conduct was not
frivolous within the meaning of 22 NYCRR 130-1.1 (see Wagner v Goldberg, 293 AD2d 527; Matter of Gavilanes v Dilan, 281 AD2d 546).

Additionally, the Supreme Court had no authority to impose a sanction
upon Anthony Piazza pursuant to 22 NYCRR 130-1.1, since he is neither a
party to this action nor an attorney (see Brock v Wagner, 283 AD2d 535; Saastomoinen v Pagano, 278 AD2d 218).

G&T Term. Packaging Co. Inc. v Western Growers Assn., 2009 NY Slip Op 07503 (App. Div., 1st, 2009)

The IAS court did not abuse its discretion by determining that
plaintiffs' conduct was frivolous within the meaning of 22 NYCRR
130-1.1(c)(2) (see Pickens v Castro, 55 AD3d 443,
444 [2008]). Contrary to plaintiffs' claim, courts take into
consideration the entire dispute between the parties, not just the
lawsuit in which sanctions are imposed (see Murray v National Broadcasting Co., 217 AD2d 651, 653 [1995]; Matter of Jemzura v Mugglin, 207 AD2d 645 [1994], appeal dismissed
84 NY2d 977 [1994]). If plaintiffs wished to litigate the underlying
merits of the parties' dispute, e.g., the quality of the produce sold
by one of the defendants to one of the plaintiffs (see 56 AD3d 266 [2008], appeal dismissed 12 NY3d 729 [2009]), they should have
pursued their federal appeals (see generally Jason v Chusid, 172 AD2d 172, 173 [1991], lv dismissed 78 NY2d 1008 [1991]).

The bold is mine.

CPLR R. 3211 Roundup: CPLR R. 3211(a)(1,3,5,7); CPLR R. 3211(e) and CPLR § 205 with CPLR § 321

In Pari Delicto

CPLR R. 3211

(a)(1) defense is founded upon documentary evidence

(a)(3) the party asserting the cause of action has not legal capacity to sue

(a)(5) the
cause of action may not be maintained because of arbitration and award,
collateral estoppel, discharge in bankruptcy, infancy or other
disability of the moving party, payment, release, res judicata, statute
of limitations, or statute of frauds

(a)(7) pleading fails to state a cause of action

CPLR § 205 Termination of action

(a) New action by plaintiff.

CPLR § 321 Attorneys
(a) Appearance in person or by attorney

Symbol Tech., Inc. v Deloitte & Touche, LLP, 2009 NY Slip Op 07826 (App. Div., 2nd, 2009)

To obtain a dismissal pursuant to CPLR 3211(a)(1), the defendant
must establish that the documentary evidence which forms the basis of
the defense be such that it resolves all factual issues as a matter of
law and conclusively disposes of the plaintiff's claim (see Leon v Martinez, 84 NY2d 83; see also Sheridan v Town of Orangetown, 21 AD3d 365).

CPLR 3211(a)(7) permits the court to dismiss a complaint that
fails to state a cause of action. The complaint must be liberally
construed and the plaintiff given the benefit of every favorable
inference (see Leon v Martinez, 84 NY2d 83; Aberbach v Biomedical Tissue Serv., Ltd., 48 AD3d 716; Mitchell v TAM Equities, Inc., 27
AD3d 703). The court must also accept as true all of the facts alleged
in the complaint and any factual submissions made in opposition to the
motion (see 511 West 232nd Owners Corp. v Jennifer Realty Co., 98 NY2d 144; Sokoloff v Harriman Estates Dev. Corp., 96 NY2d 409; Alsol Enters., Ltd. v Premier Lincoln-Mercury, Inc., 11
AD3d 493). If the court can determine that the plaintiff is entitled to
relief on any view of the facts stated, its inquiry is complete and the
complaint must be declared legally sufficient (see Campaign for Fiscal Equity v State of New York, 86 NY2d 307, 318; see also Sokoloff v Harriman Estates Dev. Corp., 96 NY2d 409; Stucklen v Kabro Assoc., 18
AD3d 461). While factual allegations contained in the complaint are
deemed true, bare legal conclusions and facts flatly contradicted on
the record are not entitled to a presumption of truth (see Lutz v Caracappa, 35 AD3d 673, 674l; Matter of Loukoumi, Inc., 285 AD2d 595).

Finally, CPLR 3211(a)(5) permits the defendant to seek and
obtain a dismissal of one or more causes of action asserted against it
on the ground that the cause of action is barred by the statute of
limitations.

***

The doctrine of in pari delicto is an equitable defense based on
agency principles which bars a plaintiff from recovering where the
plaintiff is itself at fault (see Ross v Bolton, 904 F2d 819, 824-825; Matter of Food Management Group v Rattet, 380 BR 677, 693-694; Albright v Shapiro, 214 AD2d 496; Bullmore v Ernst & Young Cayman Is., 20
Misc 3d 667, 670). Moreover, the misconduct of managers acting within
the scope of their employment will normally be imputed to the
corporation (see Wight v Bank America Corp., 219 F3d 79, 86; Center v Hampton Affiliates, 66 NY2d 782, 784; Christopher S. v Douglaston Club, 275
AD2d 768, 769). The underlying concept is that the actions of an agent
can be imputed to a corporation when its agent acts within the scope of
his or her employment (see Center v Hampton Affiliates, 66 NY2d at 784).

Under New York law, the doctrine of in pari delicto is subject to the "adverse interest" exception ^[FN2] (see Center v Hampton Affiliates, 66
NY2d 782). In this case, Symbol's amended complaint is sufficient to
trigger the adverse interest exception to the in pari delicto doctrine.

The "adverse interest" exception is a method by which a
plaintiff corporation can demonstrate that its agent's actions should
not be imputed to it. The corporation must show that the agent's fraud
was entirely self-interested and that the corporation did not benefit
in any way (see 546-552 West 146th St., LLC v Arfa, 54 AD3d 543; Capital Wireless Corp. v Deloitte & Touche, 216
AD2d 663, 666). If the agent was acting solely for his or her own
benefit and to the detriment of the corporation, it cannot be said that
the agent was acting in the scope of his or her employment (see Center v Hampton Affilliates, 66 [*4]NY2d at 784).

This exception has been defined very narrowly in New York (see 546-552 West 146th St., LLC v Arfa, 54
AD3d 543). Under this narrow exception, management misconduct will not
be imputed to the corporation if the officer acted entirely in his own
interest and adversely to the interest of the corporation (see Center v Hampton Affiliates, 66
NY2d at 785). "The theory is that where an agent, though ostensibly
acting in the business of the principal, is really committing a fraud
for his own benefit, he is acting outside of the scope of his agency,
and it would therefore be most unjust to charge the principal with
knowledge of it" (Wight v Bank America Corp., 219 F3d 79, 87).
The adverse interest exception applies only when the agent has "totally
abandoned" the principal's interests and is acting entirely for his own
or another's purposes (Center v Hampton Affiliates, 66 NY2d at 785).

Credigy Receivables, Inc. v Agiwal, 2009 NY Slip Op 07790 (App. Div., 2nd, 2009)

The appeal from the intermediate order dated February 7, 2008, must
be dismissed because the right of direct appeal therefrom terminated
with the entry of judgment in the action (see Matter of Aho, 39 NY2d 241, 248). The issues raised on appeal from that order are brought up for [*2]review and have been considered on appeal from the judgment (see CPLR 5501[a][1]).

The defendant's motion to dismiss the complaint based on lack of
personal jurisdiction was properly denied on the ground that the
objection of improper service of the summons and complaint was waived
by the defendant's failure to move to dismiss on that ground within 60
days of service of the answer (see CPLR 3211[e]).

In its motion for summary judgment, the plaintiff established
its entitlement to judgment as a matter of law against the defendant in
the principal sum of $55,682.32, and the defendant failed to raise a
triable issue of fact in response thereto (see Alvarez v Prospect Hosp., 68 NY2d 320).

Moran Enters., Inc. v Hurst, 2009 NY Slip Op 07807 (App. Div., 2nd, 2009)

The Supreme Court erred in dismissing the complaint pursuant to CPLR
3211(a)(5). The principle of res judicata bars relitigation of claims
where a judgment on the merits exists from a prior action between the
same parties involving the same subject matter (see Matter of Hunter,
4 NY3d 260, 269). Dismissal of the prior action insofar as asserted by
MEI was upheld by this Court on the ground that MEI failed to appear by
an attorney as required by CPLR 321(a) (see Moran v Hurst, 32
AD3d 909). Such was not a

Continue reading “CPLR R. 3211 Roundup: CPLR R. 3211(a)(1,3,5,7); CPLR R. 3211(e) and CPLR § 205 with CPLR § 321”

CPLR R. 3212(a)(f) Shennanigans and CPLR § 3213

CPLR R. 3212 Motion for summary judgment
(a) Time; kind of action
(b) Supporting proof; grounds; relief to either party
(f) Facts unavailable to opposing party

CPLR § 3213 Motion for summary judgment in lieu of complaint

Abdalla v Mazl Taxi, Inc., 2009 NY Slip Op 07566 (App. Div., 2nd, 2009)

The defendants established good cause in support of that branch of
their motion which was for leave to extend their time to move for
summary judgment until 120 days after receipt of all outstanding
discovery, since there was significant discovery outstanding at the
time the note of issue was filed (see Gonzalez v 98 Mag Leasing Corp., 95 NY2d 124; Jones v Grand Opal Constr. Corp., 64 AD3d 543; Sclafani v Washington Mut., 36 AD3d 682; Herrera v Felice Realty Corp., 22 AD3d 723, 724). Therefore, that branch of their motion should have been granted.

Delacruz v Ostrich Cab Corp., 2009 NY Slip Op 07577 (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). During his examination of the plaintiff, the
defendants' orthopedic surgeon found restrictions in the range of
motion of the plaintiff's lumbar spine, which he described as
"self-restricted." However, he failed to explain or substantiate with
any objective medical evidence the basis for his conclusion that the
limitations that were noted were self-restricted (see Cuevas v Compote Cab Corp., 61 AD3d 812; Colon v Chuen Sum Chu, 61 AD3d 805; Torres v Garcia, 59 AD3d 705; Busljeta v Plandome Leasing, Inc., 57 AD3d 469).
Accordingly, the Supreme Court properly denied the defendants' motion
for summary judgment without considering the sufficiency of the
plaintiff's opposition papers (see Cuevas v Compote Cab Corp., 61 AD3d 812; Coscia v 938 Trading Corp., 283 AD2d 538).

Solomon v Langer, 2009 NY Slip Op 07335 (App. Div., 1st, 2009)

Plaintiff established her entitlement to summary judgment in lieu of
complaint on the promissory note made by defendant by establishing
execution, delivery, demand and failure to pay (see Israel Discount Bank of N.Y. v 500 Fifth Ave. Assoc.,
167 AD2d 203 [1990]). Defendant failed to substantiate, in evidentiary
form, his assertion that payments to plaintiff's mother, an alleged
business acquaintance since deceased, discharged the note. Defendant
sets forth no evidence of misleading conduct on the part of plaintiff
indicating that she gave her mother the authority to transact business
on her behalf (compare Hallock v State of New York, 64 NY2d 224,
231 [1984]). Furthermore, the note unequivocally stated that payment
was to be made directly to plaintiff and the parol evidence rule bars
consideration of defendant's purported oral agreement with plaintiff's
mother regarding payment of the loan (see Manufacturers Hanover Trust Co. v Margolis,
115 AD2d 406 [1985]). Moreover, it is settled that "invocation of
defenses based on facts extrinsic to an instrument for the payment of
money only do not [*2]preclude CPLR 3213 consideration" (Alard, L.L.C. v Weiss, 1 AD3d 131,767 NYS2d 11, 2003 N.Y. Slip Op. 18173).

Davila v New York City Tr. Auth., 2009 NY Slip Op 07792 (App. Div., 2nd, 2009)

The opposition to the motion submitted by Keyspan and the defendant
Liberty Department Store, the only parties who opposed the motion,
failed to raise a triable issue of fact (see CPLR 3212[b]). [*2]Moreover,
contrary to the contention of those defendants, the appellant's motion
was not premature, as they failed to offer an evidentiary basis to
suggest that discovery may lead to relevant evidence and that facts
essential to justify opposition were exclusively within the knowledge
or control of the appellant (see Lopez v WS Distrib., Inc., 34
AD3d 759, 760). "The mere hope or speculation that evidence sufficient
to defeat a motion for summary judgment may be uncovered during the
discovery process is insufficient to deny the motion" (Lopez v WS Distrib., Inc., 34
AD3d 759). Accordingly, the Supreme Court should have granted the
appellant's motion for summary judgment dismissing the complaint and
all cross claims insofar as asserted against it.

and finally,

Stoian v Reed, 2009 NY Slip Op 07713 (App. Div., 3rd, 2009)

We also reject plaintiffs' assertion that Supreme Court abused its
discretion in failing to grant them additional time with which to
conduct discovery. Although the court had the discretion to permit
further discovery if it found that "facts essential to justify
opposition [to a motion for summary judgment] may exist but cannot then
be stated" (CPLR 3212 [f]; see Clochessy v Gagnon, 58 AD3d
1008, 1010 [2009]), "the nonmoving party must produce some evidence
indicating that further discovery 'will yield material and relevant
evidence'" (Fleischman v Peacock Water Co., Inc., 51 AD3d 1203, 1205 [2008], quoting Zinter Handling, Inc. v Britton, 46 AD3d 998,
1001 [2007] [citation omitted]). "The 'mere hope' that evidence
sufficient to defeat the motion may be uncovered during the discovery
process is not enough" (Mazzaferro v Barterama Corp., 218 AD2d 643, 644 [1995], quoting Jones v Gameray, 153 AD2d 550, 551 [1989]; see Clochessy v Gagnon, 58 AD3d at 1010).

Here, plaintiffs requested an extension to obtain testimony from
three contractors that had worked on the house. However, plaintiffs
fail to provide any specifics as to how these [*3]individuals could provide evidence material and relevant to defendants' alleged active concealment (see Zinter Handling, Inc. v Britton,
46 AD3d at 1001). Further, it is undisputed that plaintiffs provided
defendants with a list of contractors who worked on the house prior to
the 1999 closing; indeed, plaintiff admitted during his deposition that
he spoke with at least two of these individuals regarding repairs to
the house (see Flieschman v Peacock Water Co., Inc., 51 AD3d at 1205; Zinter Handling, Inc. v Britton,
46 AD3d at 1001). Under these circumstances, and given the fact that
plaintiffs provide no reasonable excuse for delaying their request for
additional discovery for over two years following depositions and,
indeed, nearly six years after commencing this action, we find no abuse
of discretion in Supreme Court's decision to deny plaintiffs' request (see Dalaba v City of Schenectady, 61 AD3d 1151, 1153 [2009]).

No-fault Defender talks about the case too.

Res Judicata, Collateral Estoppel, and Law of the Case

Res Judicata

Collateral Estoppel

Law of the Case

State Farm Ins. Co. v Frias, 2009 NY Slip Op 07825 (App. Div., 2nd, 2009)

State Farm argued that, because the three nondefaulting defendants
had not proposed a counter-judgment, had not opposed State Farm's
proposed judgment, had not moved for leave to renew or reargue, had not
moved to vacate the judgment, and had not appealed from the judgment,
they were estopped from challenging the declarations contained in it.
Luccme and Urena opposed State Farm's motion and, in an order entered
April 10, 2008, the Supreme Court granted the motion based on the
failure of the nondefaulting defendants to oppose the proposed
judgment. Luccme and Urena appeal from the resulting judgment. We
reverse.

Inasmuch as State Farm initially moved for leave to enter a
default judgment against the defaulting defendants only, the resulting
judgment binds only those defendants, and may not be given preclusive
effect to deprive Luccme and Urena, who appeared in the action, of
their right to litigate the issues pertaining to coverage (see American Motorists Ins. Co. v North Country Motors, 57 AD2d 158, 160). Accordingly, we reverse the order insofar as appealed from.

But what about privity.

Shelley v Silvestre, 2009 NY Slip Op 07822 (App. Div., 2nd, 2009)

"Under the doctrine of res judicata, a final disposition on the merits
bars litigation between the same parties of all other claims arising
out of the same transaction or out of the same or related facts, even
if based upon a different theory involving materially different
elements of proof. The rule applies not only to claims litigated but
also to claims that could have been raised in the prior litigation" (Matter of City of New York v Schmitt, 50 AD3d 1032, 1033 [citations omitted]; see Matter of Reilly v Reid, 45
NY2d 24, 30). The claims raised in the instant complaint were raised or
could have been raised during a prior action between the same parties,
which was disposed of on the merits. Accordingly, the plaintiffs'
complaint was properly dismissed as barred by the doctrine of res
judicata (see Town of New Windsor v New Windsor Volunteer Ambulance Corps, Inc., 16 AD3d 403, 404-405; Slavin v Fischer, 160 AD2d 934, 934-935).

Lighthouse 925 Hempstead, LLC v Citibank, N.A., 2009 NY Slip Op 07597 (App. Div., 2nd, 2009)

"Res judicata serves to bar future litigation between the same
parties or those in privity with the parties of a cause of action
arising out of the same transaction or series of transactions as a
cause of action that was raised in a prior proceeding" (Winkler v Weiss, 294 AD2d 428, 429; see Matter of ADC [*2]Contr. & Constr., Inc. v Town of Southampton,
50 AD3d 1025, 1026). The fact that causes of action may be stated
separately or invoke different legal theories will not permit
relitigation of claims (see Matter of Hodes v Axelrod, 70 NY2d 364, 372; see also Matter of ADC Contr. & Constr., Inc. v Town of Southampton, 50 AD3d at 1025).

Here, both this action and the prior action arise from the same
transaction, namely the defendants' alleged failure to remove a
drive-thru ATM. The fact that Lighthouse now invokes the legal theory
of trespass instead of breach of contract, which it argued in the prior
action, will not permit it to relitigate the claim. Therefore, the
Supreme Court properly granted the defendants' motion for summary
judgment dismissing the complaint on the ground that it was barred by
res judicata.

Frankson v Brown & Williamson Tobacco Corp., 2009 NY Slip Op 06799 (App. Div., 2nd, 2009)

As a general rule, the law of the case doctrine precludes this Court
from re-examining an issue which has been raised and decided against a
party on a prior appeal where that party had a full and fair
opportunity to address the issue (see People v Evans, 94 NY2d 499, 502; Allison v Allison, 60 AD3d 711; Lipp v Port Auth. of N.Y. and N.J., 57 AD3d 953, 954; Town of Massena v Healthcare Underwriters Mut. Ins. Co., 40 AD3d 1177,
1197). Unlike res judicata and collateral estoppel, which "are rigid
rules of limitation," the law of the case doctrine "is a judicially
crafted policy that expresses the practice of courts generally to
refuse to reopen what has been decided, [and is] not a limit to their
power'" (People v Evans, 94 NY2d at 503, quoting Messenger v Anderson, 225 US 436, 444). Thus, while the law of the case doctrine is intended to foster "orderly convenience" (Foley v Roche, 86
AD2d 887, 887), it is not an absolute mandate which limits an appellate
court's power to reconsider issues where there are extraordinary
circumstances, "such as subsequent evidence affecting the prior
determination or a change of law" (Lipp v Port Auth. of N.Y. and N.J., 57 AD3d at 954; see People v Evans 94 NY2d at 503; J-Mar Serv. Ctr., Inc. v Mahoney, Connor & Hussey, 45 AD3d 809; Foley v Roche, 86 AD2d at 887).

Guided by these principles, we agree that the law of the case
doctrine precludes us from reconsidering the issues of whether the
trial court applied an appropriate standard for the admissibility of
scientific evidence, and whether punitive damages were properly
assessed against the Tobacco Institute and the Tobacco Council. These
issues were raised by the defendants and decided against them on the
prior appeals, and there are no new factual circumstances or change in
the law which would warrant our reconsideration (see Pekich v James Lawrence, Inc., 38 AD3d 632, 633; Quinn v Hillside Dev. Corp., 21 AD3d 406, 407; Wendy v Spector, 305 AD2d 403).

All the bold is mine.

CPLR § 5511–only the aggrieved can appeal

CPLR § 5511 Permissible appellant and respondent

AMS Prods., LLC v Signorile, 2009 NY Slip Op 07776 (App. Div., 2nd, 2009)

Only an aggrieved party may appeal from an order or judgment pursuant to CPLR 5511 (see Unitrin Advantage Ins. Co. v Duclaire, 49 AD3d 863). Where a party obtains the relief it seeks from the Supreme Court, is not aggrieved by that order (id.; see DiMare v O'Rourke, 35 AD3d 346; Evans v Nab Constr. Corp., 80 AD2d 841).

Here, the plaintiff, by its motion, sought a preliminary
injunction enjoining the defendant from "engaging in any business,
trade or occupation" within the New York City metropolitan area that
was "similar to the one" he sold to the plaintiff. The Supreme Court
granted all of the relief requested in the plaintiff's motion.
Consequently, the plaintiff is not an aggrieved party.

To the extent that the plaintiff requests relief on this appeal
which was not sought before the Supreme Court, that request is not
properly before this Court.

The bold is mine.

Standing Waived; CPLR R. 3211(e) and other issues (CPLR § 3020(d)(3) & CPLR § 105(u))

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

CPLR § 3020 Verification

CPLR § 105 Definitions

(u) Verified pleading. A “verified pleading” may be utilized as an affidavit whenever the latter is required.

Deutsche Bank Natl. Trust Co. v Young, 2009 NY Slip Op 07578 (App. Div., 2nd, 2009)

Contrary to the appellants' contention, the Supreme Court did not err
in determining that they waived the issue of standing by failing to
timely appear or answer (see CPLR 3211[a][3], [e]; HSBC Bank, USA v Dammond, 59 AD3d 679; Wells Fargo Bank Minn., N.A. v Mastropaolo, 42 AD3d 239).

Simple enough.

Urban Justice Ctr. v Silver, 2009 NY Slip Op 07506 (App. DIv., 1st, 2009)

Plaintiff Urban Justice Center (UJC) lacks standing to bring this
action. While it alleges vaguely that the prohibitions on communication
contained in the Assembly and Senate rules as to what constitutes
"official mail" for purposes of Legislative Law § 16 interfere with its
ability and that of its clients to receive the communications necessary
to enable them to measure the responsiveness and efficacy of their
elected representatives while determining the best use of their limited
advocacy resources, this is not an infringement unique and distinct to
UJC and its clients. All citizens have the right to open access to
their elected representatives, and are deprived of that right when
communications from their legislators are censored. UJC has failed to
allege a personally concrete and demonstrable injury distinct from that
suffered by the public at large (see Matter of Transactive Corp. v New York State Dept. of Social Servs.,
92 NY2d 579, 587 [1998]). For the same reason, UJC also lacks
third-party standing to raise a First Amendment claim on behalf of its
clients (see Matter of MFY Legal Servs. v Dudley, 67 NY2d 706,
708-709 [1986]). Because it has not alleged that the rules and
practices at issue have caused it "injury by way of an added burden on
[its] resources," or that its need to litigate this action on behalf of
its clients is such a "central concern of our society" as to justify
giving it standing without otherwise meeting the requirement of showing
injury-in-fact, there is no basis for conferring organizational
standing upon UJC under Grant v Cuomo (130 AD2d 154, 159 [1987], affd 73 NY2d 820 [1988]).

A little more complicated.

Wells Fargo Bank, N.A. v Marchione, 2009 NY Slip Op 07624 (App. Div., 2nd, 2009)

Wells Fargo also contends that the assignment is valid, as it is
retroactive to October 28, 2007, a date prior to the commencement of
the action. Wells Fargo again relies on Hoovis, where the retroactive assignment was effective on May 1, 1997, prior to the commencement of the action on June 19, 1997 (see Bankers Trust Co. v Hoovis, 263 AD2d at 938). In Hoovis, however,
the defendant was unable to contradict the plaintiff's documentation
demonstrating that delivery of the note and mortgage occurred prior to
the initiation of the action. Here, it is clear that the date of the
execution of the assignment was after the commencement of the action.
If an assignment is in writing, "the execution date is generally
controlling and a written assignment claiming an earlier effective date
is deficient unless it is accompanied by proof that the physical
delivery of the note and mortgage was, in fact, previously effectuated"
(LaSalle Bank Natl. Assn., 59 AD3d at 912). While recognizing
that in some circumstances parties to an agreement may bind themselves
retroactively, "the fiction of retroactivity . . . should not be
applied to affect adversely the rights of third persons" (Debreceni v Outlet Co., 784 F2d 13, 20; see also 2
Lord, Williston on Contracts § 6:61, at 893 [4th ed]). Thus, a
retroactive assignment cannot be used to confer standing upon the
assignee in a foreclosure action commenced prior to the execution of
the assignment (see LaSalle Bank Natl. Assn., 59 AD3d 912). We
disagree with the contention of Wells Fargo that public policy favors
permitting less than strict compliance with the requirement that, in
order to commence a foreclosure action, a plaintiff must have a legal
or equitable interest in the subject mortgage.

Wells Fargo also argues that if the action were to be
dismissed, the result would be a waste of judicial resources, as it
would simply commence another action as soon as the original action was
dismissed. Wells Fargo might have reached this conclusion earlier in
its calculus to commence the lawsuit prior to the execution of the
assignment.

Significantly, Wells Fargo's attorney submitted a verification
pursuant to CPLR 3020(d)(3), which allows an attorney to verify the
complaint if the party is not in the county where the attorney
maintains [*4]an office. "A verification
is a statement under oath that the pleading is true to the knowledge of
the deponent, except as to matters alleged on information and belief,
and as to those matters, he believes it to be true" (CPLR 3020[a]).
"Since the verification makes the pleading, or those parts of the
pleading that are verified, sworn data, a verified pleading is the
equivalent of an affidavit, CPLR 105, and may be used for the same
purposes" (Siegel, Practice Commentaries, McKinney's Cons Laws of NY,
Book 7B, CPLR C3020:2). When an attorney verifies, he or she affirms
under the penalties of perjury (see Siegel, Practice Commentaries, McKinney's Cons Laws of NY, Book 7B, CPLR C3020:9).

In the verification, Wells Fargo's attorney affirmed the
complaint to be true to the best of his knowledge, and his belief as to
matters stated to be alleged on information and belief was based upon
"correspondence, memoranda and statements of account in affirmant's
possession." The complaint included a paragraph that stated Wells Fargo
was "now the sole, true and lawful owner of record of the bond(s),
note(s) and mortgage(s) securing the Mortgaged Premises." This averment
was not based on information and belief and could not have been true on
the date of the verification, November 29, 2007, since the actual
execution of the assignment did not take place until December 4, 2007.
Thus, the complaint contained a misstatement of a material fact which
is not excused simply because the attorney was the one who verified the
complaint.

Note the Court's comment on the verification. Rough.

Maldonado v Altemburger, 2009 NY Slip Op 07507 (App. Div. 1st, 2009)

This is the second action brought by plaintiff to recover damages
for injuries he allegedly sustained in a car accident. The first action
was dismissed as a nullity, because the person who was named as the
sole defendant had died before the action was commenced (see Maldonado v Law Off. of Mary A. Bjork, 64 AD3d 425
[2009]). This action must be dismissed because the named defendant is
not the personal representative of the decedent's estate (see id.; Marte v Graber, 58 AD3d 1, 3 [2008]).

It does not avail plaintiff that defendant did not cooperate
with him in his efforts to obtain the necessary documentation for a
SCPA 1002(1) petition for the appointment of an administrator.
Plaintiff apparently failed to timely seek a court order to obtain the
documentation.

Not quite a standing issue. More of a there-isn't-anyone-to-sue issue. Not even that. More of a who-is-in-charge-of-this-thing issue.

Lack of good faith letter requires denial of cross-motion 22 NYCRR 202.7(c)

22 NYCRR 202.7 Calendaring of motions; uniform notice of motion form; affirmation of good faith

(c) The affirmation of the good faith effort
to resolve the issues raised by the motion shall indicate the time,
place and nature of the consultation and the issues discussed and any
resolutions, or shall indicate good cause why no such conferral with
counsel for opposing parties was held.

Natoli v Milazzo, 2009 NY Slip Op 06815 (App. Div., 2nd, 2009)

Further, the court should have denied the cross motion because the
affirmation of good faith submitted by the plaintiffs' counsel was
insufficient, as it did not refer to any communications between the
parties that would evince a diligent effort by the plaintiffs to
resolve the discovery dispute (see 22 NYCRR 202.7[c]; Amherst Synagogue v Schuele Paint Co., Inc., 30 AD3d 1055, 1056-1057; Cestaro v Chin, 20 AD3d 500, 501; see also Baez v Sugrue, 300 AD2d 519, 521).