Experts & CPLR R. 2106

CPLR R. 2106 Affirmation of truth of statement by attorney, physician, osteopath or dentist

Todman v Yoshida, 2009 NY Slip Op 05257 (App. Div., 1st, 2009)

The court correctly precluded the testimony of plaintiff's expert
toxicologist. The foundation for the expert's opinion that plaintiff's
alleged health condition was caused by toxic chemicals contained in the
wood-stripping agents used by defendant Yoshida in an apartment in the
building owned by Brown and Cook-Brown lacked the "specific causation"
i.e., that plaintiff was exposed to levels of the toxins
sufficient to cause the condition (see Parker v Mobil Oil Corp., 7 NY3d 434,
448 [2006]). While "not required to pinpoint exposure with complete
precision," the expert failed even to offer a "scientific expression"
of plaintiff's exposure
(id. at 449).

He neither provided a measurement of plaintiff's exposure nor
employed any of the available methods for reasonably estimating it,
such as mathematical modeling or comparing plaintiff's exposure level
to those of study subjects whose exposure levels were precisely
determined. Absent was any statement that the chemicals in question are
capable of causing injury at even the lowest exposure level.

In his affidavit submitted in opposition to defendants' motion,
the expert also failed to provide any measurement or estimate of
plaintiff's exposure to the subject toxins. While he opined, based on
the manner in which Yoshida used the
wood-stripping agents, that Yoshida's exposure to the toxins contained in those agents exceeded the limits set by OSHA,
"standards promulgated by regulatory agencies as protective measures are inadequate to demonstrate legal causation" (id.
at 450). Furthermore, he failed to state any relationship between
Yoshida's exposure and that of plaintiff, who occupied a different

Ortiz v Ash Leasing, Inc., 2009 NY Slip Op 05168 (App. Div., 1st, 2009)

Ortiz's doctor's conclusory statement in July 2008 that the knee
operation was related to the August 3, 2006 accident is contradicted by
August 30, 2006 X-rays and a September 18, 2006 MRI showing
degenerative changes (see Thompson, 15 AD3d at 99), and the
doctor's "failure even to mention, let alone explain, why he ruled out
degenerative changes as the cause of plaintiff's knee . . . injuries,
rendered his opinion that they were caused by the accident speculative"
(Valentin v Pomilla, 59 AD3d 184, 186 [2009]; see also Perez v Hilarion, 36 AD3d 536, 537 [2007]).

Board of Mgrs. of the 195 Hudson St. Condominium v 195 Hudson St. Assoc., LLC, 2009 NY Slip Op 04950 (App. Div., 1st, 2009)

Plaintiff's argument that the court abused its discretion by precluding
their expert from testifying as to future costs is preserved (see CPLR 5501[a][3]; Kalisch-Jarcho, Inc. v City of New York,
58 NY2d 377, 382 [1983]). "Given the lengthy colloquy on the subject,
the court obviously was aware of the nature of the objection and, more
importantly, it recognized that the issue would be subject to appellate
(Gallegos v Elite Model Mgt. Corp., 28 AD3d 50, 59 [2005]).

While the "qualification of an expert witness is within the court's
sound discretion, and its determination will not be disturbed in the
absence of serious mistake, an error of law or abuse of discretion" (People v Jones, 171 AD2d 609, 610 [1991], lv denied 77 NY2d 996 [1991]), this expert should not have been precluded from testifying as to future cost estimates (see generally Issacs v Incentive Sys.,
52 AD2d 550 [1976]). Licensed professionals acting as experts have been
found qualified to give their opinions regarding future or estimated
costs (see Matter of City of Troy v Town of Pittstown, 306 AD2d 718, 719 [2003], lv denied 1 NY3d 505 [2003]), and this witness's education, training and experience qualified him to testify as an expert in connection [*2]with
estimating costs.
The computer database utilized by plaintiff's expert
to prepare pre-bid cost estimates was based on the same methodology
employed in connection with the completed remediation work —
specifications and bids of hundreds of prior projects on which the
expert had worked. Furthermore, "any alleged lack of knowledge in a
particular area of expertise goes to the weight and not the
admissibility of the testimony," and could have been cured with a
limiting instruction to the jury
(see Moon Ok Kwon v Martin, 19 AD3d 664 [2005]).

K & J/Gonzalez's argument that it is entitled to set off
against the $2,059,692.09 jury verdict the $1,960,000 received from the
settling codefendants is unsupported by the record (see e.g. Promenade v Schindler El. Corp., 39 AD3d 221, 222-223 [2007], lv dismissed
9 NY3d 839 [2007]). Based on the explicit language of the second
amended complaint, the verdict sheet and the settling agreements, there
is no basis for concluding that the jury allocated damages to these
defendants based on the same claims or injuries by which plaintiff had
entered into its agreements with the settling codefendants. Plaintiff's
Amended CPLR 3101(d) Expert Disclosure clearly indicated that this
expert's testimony would address construction defects caused by K &
J and the "costs to remedy" those defects.

Maffei v Santiago, 2009 NY Slip Op 05298 (App. Div., 2nd, 2009)

The medical reports of Dr. James McWilliam were without any
probative value in opposing the defendants' motion because they were
unaffirmed (see Grasso v Angerami, 79 NY2d 813; Niles v Lam Pakie Ho, 61 AD3d 657; Uribe-Zapata v Capallan, 54 AD3d 936; Patterson v NY Alarm Response Corp., 45 AD3d 656; Verette v Zia, 44 AD3d 747; Nociforo v Penna, 42 AD3d 514; [*2]Pagano v Kingsbury, 182 AD2d 268).

Finally, the plaintiff's affidavit was insufficient to raise a triable issue of fact (see Thomas v Weeks, 61 AD3d 961; Luizzi-Schwenk v Singh, 58 AD3d 811; Gochnour v Quaremba, 58 AD3d 680).

The bold is mine.

CPLR § 3126

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

Northfield Ins. Co. v Model Towing & Recovery, 2009 NY Slip Op 04878 (App. Div., 2nd, 2009)

A preliminary conference order dated July 28, 2005, set forth
deadlines for discovery including, inter alia, a provision that the
plaintiff was to provide, within 30 days of the preliminary conference,
its complete claims file, all contracts relating to the subject
premises, and responses to any of the demands of the defendant Model
Towing and Recovery (hereinafter Model Towing) to the extent not
already provided. By order entered December 19, 2006, the Supreme
Court, inter alia, directed the parties to appear for a status
conference on February 14, 2007, at which time it was anticipated that
all discovery would be completed.

The court conducted numerous status conferences throughout 2006
and 2007 to expedite discovery. At the conclusion of a conference on
December 12, 2007, after the parties failed to complete discovery, the
court issued an order directing, inter alia, that by January 16, 2008,
the plaintiff was to produce a certified copy of its claims and
underwriting files pertaining to the subject premises, in addition to
providing responses to any outstanding discovery requests. In addition,
Model Towing was directed to "advise" the plaintiff by letter with
respect to the outstanding demands by December 14, 2007. The order also
directed that the plaintiff's failure to provide any of the demanded
documents would result in preclusion. Model Towing provided a list of
25 outstanding demands to the plaintiff on December 12, 2007, in court.
By January 16, 2008, discovery from the plaintiff remained outstanding.

Thereafter, Model Towing moved, inter alia, to strike the
plaintiff's complaint pursuant to CPLR 3126 for the plaintiff's failure
to comply with discovery demands and discovery orders of the court,
including the order dated December 12, 2007. In an order entered August
21, 2008, the court denied the motion, finding that the plaintiff's
actions were not willful, contumacious, or calculated to deprive Model
Towing of discovery. In the same order, the court set forth a schedule
by which the outstanding discovery was to be completed and provided
that failure to comply with the schedule would be the basis for a
motion for relief pursuant to CPLR 3126.

The nature and degree of the penalty to be imposed pursuant to CPLR 3126 is a matter of discretion (see Kihl v Pfeffer, 94 NY2d 118, 122; Zletz v Wetanson, 67 NY2d 711; Morano v Westchester Paving & Sealing Corp., 7 AD3d 495; Novis v Benes,
268 AD2d 464). Although striking a pleading is a drastic remedy, it is
appropriate where there is a clear showing that the failure to comply
with discovery demands was willful or contumacious (see Frias v Fortini, 240 AD2d 467; cf. Novis v Benes,
268 AD2d 464). It can be inferred that a party's conduct is willful and
contumacious when it repeatedly fails to comply with discovery demands
and court orders compelling disclosure without providing a reasonable
excuse for noncompliance
(see Mei Yan Zhang v Santana, 52 AD3d 484, 485; Dinstber v Geico Ins. Co., 32 AD3d 893; Kroll v Parkway Plaza Joint Venture, 10 AD3d 633, 634; Ordonez v Guerra, 295 AD2d 325; Cutolo v Khalife, 242 AD2d 661; Frias v Fortini, 240 AD2d 467; Kubacka v Town of North Hempstead,
240 AD2d 374). "If the credibility of court orders and the integrity of
our judicial system are to be maintained, a litigant cannot ignore
court orders with impunity"
(Kihl v Pfeffer, 94 NY2d at 123).

The plaintiff did not offer a reasonable excuse for failing to
comply with Model Towing's repeated discovery demands or the orders of
the court directing compliance with those demands. Accordingly, it was
an improvident exercise of discretion to deny Model Towing's motion to
unconditionally strike the complaint
(see Hanlon v Rosenthal, 7 AD3d 758; Smith v Eastern Long Is. Hosp., 263 AD2d 477).

IDT Corp. v Morgan Stanley Dean Witter & Co., 2009 NY Slip Op 05253 (App. Div., 1st, 2009)

IDT alleges that Morgan Stanley produced more than 2,000 pages of
documents in response to IDT's subpoena and represented in writing that
it had fully complied with the subpoena, but that during the course of
discovery in this action IDT learned that Morgan Stanley produced only
a small percentage of the documents that were relevant and responsive
to IDT's subpoena and that the excluded documents, consisting of an
additional 500,000 pages, included critical "smoking gun" documents.

One of those documents is a letter from two Morgan Stanley executives
to Telefonica's chairman just two months after the contract with IDT
was signed, advising Telefonica to sell its equity in the project at
cost and encouraging Telefonica to reevaluate its agreements with IDT.
IDT alleges that this concealment by Morgan Stanley caused it great
damage in the arbitration because the withheld documents would have
enabled IDT to prove that Telefonica had breached the contract as early
as October 1999 rather than somewhere between October 2000 and March
2001, as the arbitrators determined, thus increasing the award of

Since IDT had not initially included causes of action for
fraudulent misrepresentation and fraudulent concealment in its
complaint, it sought leave to amend the complaint [FN2].
Supreme Court granted the motion, rejecting Morgan Stanley's arguments
that the claims were legally deficient because IDT could not
demonstrate that it suffered any harm as a result of not having the
documents during the arbitration and that the documents were
cumulative. The court found that IDT had pleaded the elements of fraud
and fraudulent concealment, noting that the elements of fraudulent
concealment are the same as fraud, with the addition that the party
charged with the fraud must have had a duty to disclose.

Subsequently, Morgan Stanley moved to dismiss those causes of
action for failure to state a cause of action on the ground that New
York does not recognize spoliation of evidence as a cognizable tort. On
constraint of the Court of Appeals' decision in Ortega v City of New York (9 NY3d 69
[2007]), Supreme Court granted the motion, concluding that IDT's
framing of the claims as fraud claims "[did] not take it out of the
rules regarding spoliation of evidence claims." This was error.

Supreme Court correctly found in its initial assessment that
IDT had sufficiently alleged claims for fraud and fraudulent
concealment. IDT alleges that Morgan Stanley made a material
misrepresentation of fact when it represented that it had fully
complied with the subpoena; that the misrepresentation was made
intentionally to defraud or mislead IDT; that IDT reasonably [*3]relied on the misrepresentation, and that it suffered damage as a result of its reliance (see e.g. P.T. Bank Cent. Asia, N.Y. Branch v ABN AMRO Bank N.V.,
301 AD2d 373, 376 [2003]). In addition to these elements, IDT alleges
that Morgan Stanley had a duty to disclose and that it failed to do so,
thus stating a claim for fraudulent concealment (id.).

The Court of Appeals' decision in Ortega v City of New York (9 NY3d 69 [2007], supra)
does not require dismissal of IDT's claims for fraud and fraudulent
concealment simply because the vehicle for the alleged fraudulent
conduct was concealment of evidence. First, the Ortega holding
involved a claim of negligent spoliation of evidence, not a claim of
intentional concealment or spoliation of evidence.
Second, unlike the
City in Ortega, which the court noted was a third party with a
duty to preserve evidence but with no connection to the underlying
litigation, Morgan Stanley was not an uninvolved third party to the
arbitration proceeding between IDT and Telefonica. It had fiduciary
relationships with both parties, and the concealment of documents from
IDT arguably both benefitted its client Telefonica in the arbitration
and protected Morgan Stanley from being sued by IDT.

Two additional circumstances distinguish this case from Ortega. The Ortega
court refused to recognize a third-party spoliation claim because the
content of the lost evidence is unknown, thus leading to speculation as
to causation and damages. Here, there is no such concern because the
concealed documents have been produced.
The court also found that it
would not be sound public policy to permit an independent tort of
spoliation to be asserted against a municipality. There are no public
policy reasons to disallow IDT's claims for fraud and fraudulent
concealment against its fiduciary based on the latter's spoliation of
subpoenaed documents.

Importantly, the Ortega court wrote that "[a]t bottom,
plaintiffs seek recognition of a new cause of action because they
cannot meet the traditional proximate cause and actual damages
standards at the foundation of our common-law tort jurisprudence" (9
NY3d at 80). IDT suffers from no such impediment. It has met the
pleading standard for fraud and fraudulent concealment and thus has a
remedy under existing tort principles. There is no indication in Ortega
that the court would reject an already recognized common-law tort claim
simply because the claim was based on the spoliation of evidence.

We note that the New Jersey courts, which do not recognize a
separate tort action for intentional spoliation, recognize a claim of
fraudulent concealment based on the intentional spoliation of evidence
(see e.g. Rosenblit v Zimmerman, 166 NJ 391, 766 A2d 749 [2001]; R.L. v Voytac, 402 NJ Super 392, 407-408, 954 A2d 527, 536 [App Div 2008] certif granted in part 197 NJ 259, 962 A2d 530 [2008]; Viviano v CBS, Inc., 251 NJ Super 113, 597 A2d 543 [App [*4]Div 1991] certif denied 127 NJ 565, 606 A2d 375 [1992]). There is no sound reason for New York courts to conclude otherwise.

The bold is mine.

CPLR § 3213–SJ in Lieu of Complaint

CPLR § 3213 Motion for summary judgment in lieu of complaint

Mendelsohn v JP Morgan Chase Bank, N.A., 2009 NY Slip Op 05304 (App. Div., 2nd, 2009)

In this action to recover on a cashier's check, the plaintiff
demonstrated his prima facie entitlement to judgment as a matter of law
by submitting a copy of the cashier's check, drawn by the [*2]defendant, on itself, and payable to him, along with proof that the defendant has refused to honor the check
(see Rosenbaum v First Natl. City Bank of N.Y., 11 NY2d 845, 846; Taboada v Bank of Babylon, 95 Misc 2d 1000; see generally Northport Car Wash, Inc. v Northport Car Care, LLC, 52 AD3d 794, 795). In opposition, the defendant failed to raise a triable issue of fact with respect to a bona fide defense (see Kaufman v Chase Manhattan Bank, 370 F Supp 276, 278; Bunge Corp. v Manufacturers Hanover Trust Co., 65 Misc 2d 829, 835, mod 37 AD2d 409, affd 31 NY2d 223; see generally Studley v National Fuel Gas Supply Corp., 125 Misc 2d 956, 961; cf. U.S. Printnet v Chemung Canal Trust Co., 270
AD2d 544, 546). Accordingly, the Supreme Court properly granted the
plaintiff's motion for summary judgment in lieu of complaint
(see Northport Car Wash, Inc. v Northport Car Care, 52 AD3d at 795).

The bold is mine.

CPLR § 1015; CPLR § 1021; CPLR § 603; CPLR R. 1010

CPLR § 1015 Substitution upon death

CPLR § 1021 Substitution procedure; dismissal for failure to substitute; presentation of appeal

CPLR § 603 Severance and separate trials

CPLR R. 1010 Dismissal or separate trial of third-party complaint

Meczkowski v E.W. Howell Co., Inc., 2009 NY Slip Op 04874 (App. Div., 2nd, 2009)

Under the circumstances of this case, the Supreme Court providently
exercised its discretion in granting that branch of the plaintiff's
motion which was for leave to substitute Marek Meczkowski, as
administrator of the estate of Bogumil Meczkowski, in place of Bogumil
Meczkowski pursuant to CPLR 1015 and CPLR 1021 (see Roesenfeld v Hotel Corp. of Am., 20 NY2d 25; Encalada v City of New York, 280 AD2d 578; Egrini v Brookhaven Mem. Hosp., 133
AD2d 610). In addition, the Supreme Court providently exercised its
discretion in granting that branch of the plaintiff's motion which was
to sever the third-party action to avoid further delay of this action,
which was commenced more than nine years ago (see CPLR 603, 1010
; see also Singh v City of New York, 294 AD2d 422; Garcia v Gesher Realty Corp., 280 AD2d 440; Ambriano v Bowman, 245 AD2d 404; [*2]Klein v City of Long Beach, 154 AD2d 346).

The bold is mine.

Contract terms

MHR Capital Partners LP v Presstek, Inc., 2009 NY Slip Op 05200 (Ct. App., 2009)

It is well settled that a contract is to be construed in accordance
with the parties' intent, which is generally discerned from the four
corners of the document itself. Consequently, "a written agreement that
is complete, clear and unambiguous on its face must be enforced [*4]according to the plain meaning of its terms"
(Greenfield v Philles Records,
98 NY2d 562, 569 [2002]). Furthermore, a condition precedent is "an act
or event, other than a lapse of time, which, unless the condition is
excused, must occur before a duty to perform a promise in the agreement
arises" (Oppenheimer & Co. v Oppenheim, Appel, Dixon & Co.,
86 NY2d 685, 690 [1995] [internal quotation marks and citations
omitted]). We have recognized that the use of terms such as "if,"
"unless" and "until" constitute "unmistakable language of condition" (id. at 691). Express conditions must be literally performed; substantial performance will not suffice.

Rahman v Park, 2009 NY Slip Op 04882 (App. Div., 2nd, 2009)

The operating agreement and the side agreement clearly conflict as
to the manner in which disputes under the respective agreements are to
be determined. The operating agreement requires arbitration of
disputes, while the side agreement contemplates judicial resolution of
disputes by the court, with certain provisions of confidentiality.

"The construction and interpretation of an unambiguous written contract is an issue of law within the province of the court" (Franklin Apt. Assoc., Inc. v Westbrook Tenants Corp., 43 AD3d 860, 861; see Jackson & Wheeler, Inc. v Village of Pleasantville, 56 AD3d 723, 724; Yu Han Young v Chiu, 49
AD3d 535, 535-536). "[A] written agreement that is . . . clear and
unambiguous [as a matter of law] must be enforced according to the
plain meaning of its terms"
(Greenfield v Philles Records, 98 NY2d 562, 569; Maroney v Hawkins, 50 AD3d 862, 863; see Ross v Sherman, 57 AD3d 758).

The parties clearly agreed that in case of conflict the
provision of the side agreement controlled. Rahman did not agree to
arbitrate issues arising under the side agreement as opposed to the
operating agreement. A party cannot be required to submit to
arbitration issues it did not agree to arbitrate
(see Credit Suisse First Boston Corp. v Cooke, 284 AD2d 365; Matter of American Centennial Ins. Co. v Williams, 233 AD2d 320; see also Brach v Fried, 16 AD3d 533; Matter of Miriam Osborn Mem. Home Assn. v Kreisler Borg Florman Gen. Constr. Co., 306
AD2d 533). To the extent the present action seeks to enforce Rahman's
rights under the side agreement, it is not subject to the mandatory
arbitration provision of the operating agreement.

P.J.P. Mech. Corp. v Commerce & Indus. Ins. Co., 2009 NY Slip Op 04984 (App. Div., 1st, 2009)

Well established principles governing the interpretation of insurance
contracts provide that the unambiguous provisions of the policy must be
given their plain and ordinary meaning (Greater N.Y. Mut. Ins. Co. v United States Underwriters Ins. Co., 36 AD3d 441, 442 [2007]). This is a question of law for the court to determine (Titlebaum Holdings v Gold, 48 NY2d 51, 56 [1979]; Seaport Park Condominium v Greater N.Y. Mut. Ins. Co., 39 AD3d 51,
54 [2007]). However, a court is not at liberty to "make or vary the
contract of insurance to accomplish its notions of abstract justice or
moral obligation"
(Breed v Insurance Co. of N. Am., 46 NY2d 351, 355 [1978]).

Significantly, if plaintiff believed that Cauldwell's defense was
truly a counterclaim, the prudent action was to immediately move to
strike the defense and force Cauldwell to
replead the claim as a counterclaim. This would have triggered the
insurer's duty to defend. Had these steps been taken in the instant
action, defendant would have been forced to defend plaintiff at the
beginning of the case, rather than when the counterclaim was
voluntarily asserted by Cauldwell several months later.

There do not appear to be any New York cases addressing the
issue of whether the assertion of a claim such as Cauldwell's offset
claim, when pleaded as an affirmative defense, triggered the insurer's
duty to defend
. Plaintiff relies on Construction Protective Servs. v TIG Specialty Ins. Co. (29
Cal 4th 189, 57 P3d 372 [2002]) and argues that we should adopt the
rationale therein.
In that case, a security firm sued the insurance
company that provided its comprehensive general liability policy,
claiming the insurer breached its duty to defend and indemnify against
a setoff claim. The setoff was asserted as an affirmative defense in a
lawsuit for unpaid services. The customer alleged that the security
firm was legally responsible for fire damage at its construction site
and thus was entitled to set those damages off against the amounts owed
for security services. The trial court sustained the insurance
company's demurrer without leave to amend, based on its conclusion that
a liability insurer's duty to defend does not extend to affirmative
defenses raised in response to a lawsuit initiated by the insured.
Based solely on its Code of Civil Procedure, the California Supreme
Court held that the trial court had erroneously sustained the demurrer,
but it declined to address the question on the facts where the precise
terms of the insurance policy were not before the court. In an action
on a written contract, a [*6]plaintiff
could, under California procedure, plead "the legal effect of the
contract rather than its precise language," thus enabling the court to
determine whether "a prima facie right to relief" had adequately been
stated, notwithstanding the specific language of the contract
(29 Cal
4th at 198-199, 57 P3d at 377).

Despite the omission of a copy of the insurance policy as an
exhibit to the complaint, the court concluded that the allegations in
the complaint were sufficient to allege that the setoff claim fell
within the scope of the contractual obligation to defend against suits
seeking damages, and left open the question whether the duty would
extend to the setoff claim once the precise language of the policy was

We decline to follow this holding. Were we to adopt the reasoning of Construction,
it would represent a dramatic change in long-established New York law,
which mandates that unambiguous contract language controls.
It would
essentially eliminate our pleading distinctions between affirmative
defenses and counterclaims by holding that how the setoff is pleaded
does not control. While Construction recognized that a setoff
is limited to defeating a plaintiff's claim in the same manner that an
affirmative defense is so limited, it then went on to hold the effect
of pleading a setoff defense is the same as if it were pleaded as a
counterclaim, and thus, at least for the purposes of whether utilized
defensively (as in an affirmative defense) or offensively (as in a
counterclaim), there is no distinction between the two. In either case,
an insurer would be mandated to assign counsel to defend the insured.
This would impact the long-established business practices of insurers,
and lead to uncertainty in the drafting of insurance contracts.

To ignore the clear language of an insurance policy and order a
carrier to litigate an affirmative action chosen by the policyholder
based on a mere claim in a defendant's answer that the affirmative
action somehow relates, however tenuously, to an occurrence or
allegation of negligence on the part of the insured would run afoul of
the rule enunciated in Breed (46 NY2d at 355). We see no reason to set aside long-standing precedent on this issue.

The bold is mine.

CPLR § 203(d)

CPLR § 203 Method of computing periods of limitation generally

(d) Defense or counterclaim

Carlson v Zimmerman, 2009 NY Slip Op 04849 (App. Div., 2nd, 2009)

The Supreme Court erred, however, in granting that branch of the
plaintiffs' motion which was to dismiss the defendants' counterclaims
as time-barred insofar as the counterclaims pertained to erosion of the
defendants' properties caused by the plaintiffs' activities. Under CPLR
203(d), "claims and defenses that arise out of the same transaction as
a claim asserted in the complaint are not barred by the Statute of
Limitations, even though an independent action by defendant might have
been time-barred at the time the action was commenced" (Bloomfield v Bloomfield, 97
NY2d 188, 193). "The provisions of CPLR 203(d) allow a defendant to
assert an otherwise untimely claim which arose out of the same
transactions alleged in the complaint, but only as a shield for
recoupment purposes, and does not permit the defendant to obtain
affirmative relief"
(DeMille v DeMille, 5 AD3d 428, 429; see Delta Funding Corp. v Murdaugh, 6 AD3d 571, 571-572; Rothschild v Industrial Test Equip. Co., 203
AD2d 271, 272). Here, there is evidence that some of the defendants'
trespassing activities were undertaken in an attempt to correct damage
that the plaintiffs admitted to having caused by excavating too deeply
into their land abutting properties belonging to the defendants, and
failing to leave a sufficient buffer area along the border. It is
undisputed that these activities caused erosion on the affected
properties, allegations concerning which form the basis of portions of
the defendants' counterclaims. Accordingly, the Supreme Court should
have denied that branch of the plaintiffs' motion which was to dismiss
the counterclaims as time-barred to the extent that the damages sought
in the counterclaims are for the erosion caused by the plaintiffs'
excavating activities, and/or to reimburse the defendants' costs in
attempting to correct the resulting damage. These damages should be
applied to offset any damages award in favor of the plaintiffs and
against the defendants (cf. Delta Funding Corp. v Murdaugh, 6 AD3d at 571-572; DeMille v DeMille, 5 AD3d at 429).

The bold is mine.

CPLR § 3215 Default judgment

(f) Proof

CPLR R 306 Proof of service

(a) Generally

Jian Zheng v Evans, 2009 NY Slip Op 04863 (App. Div., 2nd, 2009)

In opposition, the plaintiffs failed to raise a triable issue of
fact. The plaintiffs produced only an attorney's affirmation offering
speculation, unsupported by any evidence, that the defendants acted in
bad faith and failed to abide by the terms of the contract of sale (see Cordova v Vinueza,
20 AD3d 445). Moreover, the plaintiffs' contention that the granting of
summary judgment was premature is without merit. The plaintiffs failed
to "show more than a mere hope that [they] might be able to uncover
some evidence during the discovery process," nor did they show that
their "ignorance was unavoidable and that reasonable attempts were made
to discover the facts which would give rise to a triable issue of fact"
(Companion Life Ins. Co. of N.Y. v All State Abstract Corp., 35 AD3d 519, 521).

The Supreme Court also properly
granted that branch of the defendants' motion which was for leave to
enter a default judgment on their counterclaim for the return of their
down payment upon the plaintiffs' failure to serve a reply to the
counterclaim. The defendants submitted proof of service of their
verified answer and counterclaim, proof of the facts constituting the
counterclaim, and an affirmation from their attorney regarding the
plaintiffs' default in serving a reply (see CPLR 3215[f]). In
opposition, the plaintiffs failed to demonstrate that they served a
reply on the defendants. Although they annexed a reply to their
attorney's affirmation, it was not signed and they did not provide
sufficient evidence of service (see CPLR 306[a], [d]; Celleri v Pabon, 299 AD2d 385, 385-86; cf. Dixon v Motor Veh Acc. Indem. Corp.,
224 AD2d 382, 383-384). Moreover, the plaintiffs did not provide a
reasonable excuse for their failure to timely serve a reply, and a
potentially meritorious defense (see ACME ANC Corp. v Read, 55 AD3d 854, 855; Twersky v Kasaks, 24 AD3d 657, 658; cf. MMG Design, Inc. v Melnick, 35 AD3d 823).

The bold is mine.

CPLR § 311(a)(1); CPLR R. 5015(a)(1)(4)

CPLR § 311 Personal service upon a corporation or governmental subdivision


CPLR R. 5015 Relief from judgment or order

(a) On motion

CPLR R. 5015(a)(4) lack of jurisdiction to render the judgment or order

CPLR R. 5015(a)(1) excusable default

Aguilera v Pistilli Constr. & Dev. Corp., 2009 NY Slip Op 04844 (App. Div., 2nd, 2009)

The affidavit of the plaintiff's process server showed that on July
25, 2005, Pistilli was served with a summons and complaint by delivery
to its general agent at its office located in Astoria. Since no answer
was served by Pistilli, the plaintiff sought and obtained leave to
enter a default judgment against it.

Pistilli sought to vacate the default pursuant to, inter alia,
CPLR 5015(a)(4), claiming that service of process was improper under
CPLR 311(a)(1), and/or pursuant to CPLR 5015(a)(1) on the ground that
its default was excusable.
By order dated October 2, 2007, the Supreme
Court, inter alia, directed a hearing to determine whether service of
process was effected. Contrary to Pistilli's position, the Supreme
Court properly ordered the hearing (see CLE Assoc., Inc. v Greene, 43 AD3d 382, 384; Skyline Agency v Ambrose Coppotelli, Inc., 117 AD2d 135, 139).

Pursuant to CPLR 311(a)(1), service upon a corporation shall be
made by delivering the summons to an officer, director, managing agent,
general agent, cashier, or assistant cashier, or to any other agent
authorized by appointment or by law to receive service. In addition,
service may be made upon someone whom the corporation cloaks with
(see Fashion Page v Zurich Ins. Co., 50 NY2d 265; Rokicki v 24 Hour Courier Serv., 282 AD2d 664, 665; Eastman Kodak Co. v Miller & Miller Consulting Actuaries, 195 AD2d 591; Seda v Armory Estates, 138 AD2d 362, 363-364).

The Supreme Court correctly determined that it acquired
jurisdiction over Pistilli through proper service of process. The
evidence adduced at the hearing established that Angela Rodriguez, to
whom the summons and complaint was delivered, was seated behind the
cashier/reception desk when the process server entered Pistilli's
office, that the process server, who had served Pistilli in the same
office and the same manner on at least three prior occasions, read the
summons and complaint out loud to Rodriguez, and that Rodriguez
informed the process server that she could accept service on behalf of
Pistilli. While Rodriguez claimed that she was not employed by
Pistilli, the record demonstrates that the company by which she was
employed shared offices with Pistilli and was owned by the same
principals. She also testified that service of process was regularly
made by delivering documents to the reception desk for the various
entities that operated out of the same office. Under these
circumstances, "the plaintiff's process server acted reasonably and
with due diligence" and it was reasonable for the process server to
believe that Rodriguez was authorized to accept service on behalf of
(Rokicki v 24 Hour Courier Serv., 282 AD2d at 664; see Fashion Page v Zurich Ins. Co., 50 NY2d 265; Eastman Kodak Co. v Miller & Miller Consulting Actuaries, 195 AD2d at 591; Seda v Armory Estates, 138
AD2d at 363-364). Furthermore, we decline to disturb any credibility
determination made by the hearing court, as its determination is amply
supported by the record (see Lattingtown Harbor Prop. Owners Assn., Inc. v Agostino, 34 AD3d 536, 538).

The Supreme Court also properly denied that branch of Pistilli's
renewed motion which was to vacate the default pursuant to CPLR
5015(a)(1). "A party seeking to vacate a default pursuant to CPLR 5015
(a)(1) must demonstrate a reasonable excuse for its delay in appearing
and answering the complaint and a meritorious defense to the action'" (New York & Presbyt. Hosp. v American Home Assur. Co., 28 AD3d 442, quoting Eugene Di Lorenzo, Inc. v A.C. Dutton Lbr. Co., 67 NY2d 138, 141; see CPLR 5015[a][1]; Koyenov v Twin-D Transp., Inc., 33 AD3d 967).
"The decision as to the setting aside of a default in answering is
generally left to the sound discretion of the Supreme Court, the
exercise of which will generally not be disturbed if there is support
in the record therefor" (Mjahdi v Maguire, 21 AD3d 1067, 1068, quoting MacMarty, Inc. v Scheller, 201 AD2d 706, 707).

Pistilli failed to offer a reasonable excuse for its failure to answer or appear in this action (see Eastman Kodak Co. v Miller & Miller Consulting Actuaries, 195 AD2d at 592). Contrary [*3]to
Pistilli's position, its default was not attributable to its insurance
carrier's assertion that it would represent it in this matter, as it
was served with the summons and complaint approximately five months
prior to any communication that it received from its insurance carrier
regarding representation
(cf. Perez v Linshar Realty Corp., 259
AD2d 532, 533). In view of the lack of a reasonable excuse, it is
unnecessary to consider whether Pistilli sufficiently demonstrated the
existence of a meritorious defense (see Mjahdi v Maguire, 21 AD3d at 1068; Krieger v Cohan, 18 AD3d 823).

The bold is mine.

Triable issue of fact as to service by mail

Liriano v Eveready Ins. Co., 2009 NY Slip Op 04871 (App. Div., 2nd, 2009)

The Supreme Court improperly granted the plaintiff's motion for summary
judgment. The plaintiff submitted a process server's affidavit of
service indicating that the defendant was served by mail with a default
judgment against its insured in the underlying action on August 13,
2007, which constituted prima facie evidence of proper service
(see Kihl v Pfeffer, 94 NY2d 118, 122; Matter of de Sanchez,
57 AD3d 452, 454). In response, the defendant came forward with a sworn
denial of receipt and an affidavit of an employee with personal
knowledge regarding the defendant's regular practices and procedures in
retrieving, opening, and indexing its mail and in maintaining its files
on existing claims. That affidavit indicated that the defendant did not
receive the judgment in the mail, and instead first learned of it on
March 13, 2008, promptly issuing a disclaimer only six days later.
Under the circumstances of this [*2]case,
the defendant's submissions sufficed to raise a triable issue of fact
regarding the service of the judgment, and the question of whether the
defendant's disclaimer of coverage was timely must await the resolution
of that issue
(see e.g. Matter of TNT Petroleum, Inc. v Sea Petroleum, Inc., 40 AD3d 771; Johnson v Deas, 32 AD3d 253; First Union Mtge. Corp. v Silverman, 242 AD2d 258; Long Is. Sav. Bank v Meliso, 229 AD2d 478; Poet v Kolenda, 142 AD2d 633).

The bold is mine.


The decision has since been recalled.

[Recalled and vacated by order of the Appellate Division, Second Department entered June 12, 2009, see 2009 NY Slip Op 75125(U).]

Informal Judicial Admission

Dietrich v Puff Cab Corp., 2009 NY Slip Op 04853 (App. Div., 2nd, 2009)

In opposition, the plaintiffs raised a triable issue of fact by the
submission of the reports of Dr. William Buchmann. Dr. Buchmann's
reports demonstrated that Dietrich's range of motion in her cervical
spine was significantly limited, when read in conjunction with the
report of the defendants' expert, Dr. Mesh. Dr. Mesh's report had set
forth the applicable normal ranges of motion against which Dr.
Buchmann's findings could be compared. A statement by an expert that is
put forward by a party in litigation constitutes an informal judicial
admission (see Chock Full O'Nuts Corp. v NRP LLC I, 47 AD3d 189, 192; Matter of City of New York,
73 AD2d 932, 933) that is admissible against, although not binding
upon, the party that submitted it. Thus, just as a nonmoving plaintiff
in a serious injury case may rely upon the unsworn report of the
plaintiff's treating physician once it has been submitted by the moving
defendant (see Pagano v Kingsbury, 182 AD2d 268), a nonmoving
plaintiff may also rely upon the statement by the moving defendant's
expert of the normal range of motion
(see Djetoumani v Transit, Inc., 50 AD3d 944, 946).

The bold is mine.