[App Div 2d Dept]

Appellate Procedure: issue may be raised for first time on appeal…

Honeyman Point Beach Assn., Ltd. v Schiff, 2009 NY Slip Op 05946 (App. Div., 2nd, 2009)

On appeal, the plaintiffs have abandoned their claim that the right to
use the beach was automatically renewed upon the absence of a written
termination agreement, and they argue for the first time that the right
to use the beach did not constitute a "covenant" subject to expiration
under the terms of the declaration, but rather an easement that runs
with the land and passes to successive lot owners. Contrary to the
defendants' contention, this issue may be raised for the first time on
appeal because it is one of law which appears on the face of the record
and could not have been avoided if it had been raised at the proper
juncture (see Romain v Grant, 60 AD3d 838, 839; Beepat v James,
303 AD2d 345). However, since the plaintiffs interchangeably referred
to the right to use the beach as both a "covenant" and "easement"
before the lower court, and relied upon the language in the declaration
that they now seek to disavow, they are estopped from raising the new
claim, which is inconsistent with the position taken before the Supreme
Court (see Matter of Sbuttoni, 16 AD3d 693, 694; Kohilakis v Smithtown, 167
AD2d 513, 514). In any event, the language of the declaration did not
unequivocally establish an intent to create a right in the nature of an
easement rather than a revocable license (see Willow Tex v Dimacopoulos, 68 NY2d 963, 965). Accordingly, the Supreme Court properly granted the defendants' separate motions to dismiss the complaint.

The bold is mine.

22 NYCRR 202.27 requires CPLR R. 5015 analysis.

22 NYCRR 202.27 Defaults

At any
scheduled call of a calendar or at any conference, if all parties do
not appear and proceed or announce their readiness to proceed
immediately or subject to the engagement of counsel, the judge may note
the default on the record and enter an order as follows:

(b) If the defendant appears but the plaintiff does
not, the judge may dismiss the action and may order a severance of
counterclaims or cross-claims.

Brown v Vanchieri, 2009 NY Slip Op 05942 (App. Div., 2nd, 2009)

Where, as here, an action on the trial calendar is dismissed pursuant
to 22 NYCRR 202.27(b), the dismissal of the action may be vacated, and
the action restored to the trial calendar, only if the plaintiff can
demonstrate both a reasonable excuse for the default and a meritorious
cause of action (see CPLR 5015[a][1]; Santiago v Santana, 54 AD3d 929, 930; Cazeau v Paul, 2 AD3d 477).
Under all of the circumstances, including the plaintiff's failure to
provide a reasonable excuse for his lengthy delay in moving for that
relief, the Supreme Court providently exercised its discretion in
denying the plaintiff's motion (see Seven Acre Wood St. Assoc. v Wood, 286 AD2d 432; Piacentini v Mineola Union Free School Dist., 267 AD2d 290, 291; cf. Matter of Putnam County Natl. Bank v JP Morgan Chase Bank, N.A., 57 AD3d 677, 678; Malik v Noe, 54 AD3d 733, 734).

The bold is mine.

Collateral Estoppel & Law of the Case & CPLR § 3215(c)

Collateral Estoppel

Law of the Case

CPLR § 3215(c) Failure to take a default within a year

New York Cent. Mut. Fire Ins. Co. v Barry, 2009 NY Slip Op 05096 (App. Div., 2nd, 2009)

The facts of this case are set forth in prior appeals to this Court relating to this matter (see Barry v Hildreth, 9 AD3d 341; New York Cent. Mut. Fire Ins. Co. v Hildreth, 40 AD3d 602).

Contrary to the defendant's contention, the plaintiff
established its entitlement to judgment as a matter of law. The
plaintiff's claim for equitable subrogation was not barred by the
general release executed by the plaintiff's insured (see Fasso v Doerr, 12 NY3d 80, 88; Aetna Cas. & Sur. Co. v Bekins Van Lines Co., 67 NY2d 901, 902; Ocean Acc. & Guar. Corp. v Hooker Electrochemical Co., 240 NY 37; Group Health, Inc. v Mid-Hudson Cablevision, Inc., 58 AD3d 1029; New York Cent. Mut. Fire Ins. Co. v Hildreth, 40 AD3d 602; Travelers Prop. Cas. v Giorgio, 21 AD3d 1086; Lesnick & Mazarin v Cutler, 255 AD2d 367; Silinsky v State-Wide Ins. Co.,
30 AD2d 1, 3). Further, the plaintiff's claim was not barred by
collateral estoppel. The plaintiff's insured's apparent abandonment,
pursuant to CPLR 3215( c), of a counterclaim against the defendant for
contribution cannot be characterized as an adjudication on the merits (see Sanders v Marino Falcone Brick Contr., 133 AD2d 342), precluding further litigation (see Bank of N.Y. v LS Monticello JV, 209 AD2d 464; see Peterson v Troy, 96 AD2d 856). In opposition, the defendant failed to raise a triable issue of fact.

Northbay Constr. Co., Inc. v Bauco Constr. Corp., 2009 NY Slip Op 05753 (App. Div., 2nd, 2009)

On a prior appeal by the defendants in both actions (hereinafter the defendants) (see Northbay Constr. Co., Inc. v Bauco Constr. Corp., 38 AD3d 737),
this Court reversed an interlocutory judgment in favor of the
plaintiffs in both actions (hereinafter the plaintiffs) directing an
accounting and imposing a constructive trust, and remitted the matter
to the Supreme Court, Westchester County, for a new trial, with costs
to abide the event. In response to this determination, the defendants
moved by order to show cause for summary judgment based, inter alia,
upon the decision and order of this Court and arguments that the
plaintiffs failed to submit sufficient evidence at the trial. Prior to
the commencement of the new trial, the plaintiffs cross-moved for
summary judgment, contending that the testimony of the defendant
Dominick Bauco at the first trial established their entitlement to
judgment as a matter of law.
[*2]

The Supreme Court, in the
order appealed from, awarded the plaintiffs partial summary judgment in
the sum of $27,345.50, based upon a concession by the defendants, but
otherwise denied the motion and cross motion on the ground, inter alia,
that the decision of this Court in Northbay Constr. Co., Inc. v Bauco Constr. Corp. (38 AD3d 737), constituted law of the case.

The doctrine of law of the case requires a court to follow the determinations of a court of coordinate jurisdiction (see Mosher-Simons v County of Alleghany, 99
NY2d 214, 219). Therefore this Court is not bound by prior orders of
the Supreme Court in this matter. However, this Court is bound by our
own prior decisions and orders in this case (see Aames Funding Corp. v Houston, 57 AD3d 808). Further, the Supreme Court was bound to follow the remittitur of this Court (see Matter of Davis, 56 AD3d 553; Sweeney, Cohn, Stahl & Vaccaro v Kane, 33 AD3d 785),
which directed a new trial. Upon remittitur, the parties submitted no
new information which would warrant a different determination (see Stone v Bridgehampton Race Circuit, 244 AD2d 403).

Accordingly, the order must be affirmed insofar as appealed and cross-appealed from, and the parties should proceed to trial (see Northbay Constr. Co., Inc. v Bauco Constr. Corp., 38 AD3d 737).

The bold is mine.

Pleadings & CPLR R. 3016 & Slander per se

CPLR R. 3016 Particularity in specific actions

Pourquoi M.P.S., Inc. v Worldstar Intl., Ltd., 2009 NY Slip Op 05755 (App. Div., 2nd, 2009)

The order appealed from relates to the plaintiff's amended complaint,
and the affirmative defenses set forth in the answer thereto of the
defendant Worldstar International, Ltd. [*2]However, those pleadings are no longer viable as they have been superseded by new pleadings alleging new causes of action (see Penniman v Fuller & Warren Co., 133 NY 442, 444; Bobash, Inc. v Festinger, 57 AD3d 464, 465; Williams v Feig, 12 AD3d 504, 505; Schoenborn v Kinderhill Corp., 98 AD2d 831, 832; Hawley v Travelers Indem. Co., 90 AD2d 684; Halmar Distribs. v Approved Mfg. Corp., 49 AD2d 841; Millard v Delaware, L. & W. R. Co., 204 App Div 80, 83; Branower & Son v Waldes, 173 App Div 676, 678). Accordingly, the appeal has been rendered academic and must be dismissed (see generally Chalasani v Neuman, 64 NY2d 879, 880; Bobash, Inc. v Festinger, 57 AD3d at 465; DePasquale v Estate of DePasquale, 44 AD3d 606, 607; Stefanopoulos v Action Airport Serv. of L.I., Inc., 35 AD3d 590; Weber v Goss, 18 AD3d 540; Monter v Massachusetts Mut. Life Ins. Co., 12 AD3d 650, 651; Williams v Feig, 12 AD3d at 505; Van Valkenburgh, Nooger & Neville v Rider Publ., 24 AD2d 437, 438).

Epifani v Johnson, 2009 NY Slip Op 05287 (App. Div., 2nd, 2009)

"The elements of a cause of action [to recover damages] for defamation are a false [*5]statement,
published without privilege or authorization to a third party,
constituting fault as judged by, at a minimum, a negligence standard,
and it must either cause special harm or constitute defamation per se'"
(Salvatore v Kumar, 45 AD3d 560, 563, quoting Dillon v City of New York, 261 AD2d 34, 38). The complaint must set forth the particular words allegedly constituting defamation (see CPLR
3016[a]), and it must also allege the time when, place where, and
manner in which the false statement was made, and specify to whom it
was made (see Dillon v City of New York, 261 AD2d at 38).

"Generally, a plaintiff alleging slander must plead and prove
that he or she has sustained special damages, i.e., the loss of
something having economic or pecuniary value'" (Rufeh v Schwartz, 50 AD3d 1002, 1003, quoting Liberman v Gelstein, 80
NY2d 429, 434-435). "A plaintiff need not prove special damages,
however, if he or she can establish that the alleged defamatory
statement constituted slander per se" (Rufeh v Schwartz, 50 AD3d
at 1003). The four exceptions which constitute "slander per se" are
statements (i) charging plaintiff with a serious crime; (ii) that tend
to injure another in his or her trade, business or profession; (iii)
that plaintiff has a loathsome disease; or (iv) imputing unchastity to
a woman (see Liberman v Gelstein, 80 NY2d at 435). When
statements fall within one of these categories, the law presumes that
damages will result, and they need not be alleged or proven (id.).

Johnson, in addressing the defamation cause of action, appears
to claim, in effect, that her alleged statement to Supple's references
that Supple was "crazy" is the only statement at issue. However, in
addition to this purported statement, Supple alleges that Johnson
stated, to Oliverre and another employee named Marita, that Supple's
employment with her was being terminated because she was stealing.

The complaint alleges that the statement that Supple was
terminated because she was stealing from Johnson was made on or about
June 15, 2005, sets forth the statement allegedly made, and that it was
made to Oliverre and Marita. Accordingly, these allegations satisfied
the pleading requirements of CPLR 3016, inasmuch as it alleged the time
when, place where, and manner in which the false statement was made,
and specified to whom it was made (see generally Dillon v City of New York, 261 AD2d at 38).

With regard to damages, the complaint only alleges that Supple "has
been injured in her good name and reputation, has suffered great pain
and mental anguish, and has otherwise been damaged in all to her damage
[sic] in a sum to be proven at the time of trial according to proof."
This assertion fails to allege special damages with sufficient
particularity. However, if the allegedly defamatory statement qualifies
as slander per se, the failure to plead special damages with
particularity will not be fatal.

As to the alleged statement that Supple was stealing from Johnson,
this constitutes an allegation of a "serious crime" so as to qualify as
slander per se (see Liberman v Gelstein, 80 NY2d at 435
[discussing the distinction between serious and nonserious crimes for
qualification as slander per se, and citing the Restatement of Torts, §
571, comment g, which lists crimes actionable as per se slander,
including, inter alia, larceny]). Further, this alleged statement would
clearly constitute one of fact rather than the privileged expression of
an opinion (see Mann v Abel, 10 NY3d 271,
276 [expressions of opinion, as opposed to assertions of fact, are
deemed privileged and, no matter how offensive, cannot be the subject
of an action to recover damages for defamation]).

With regard to Johnson's alleged statement describing Supple as
"crazy," the complaint only alleges that the defamation occurred when
Johnson made this remark generally to Supple's "references," and thus
failed to identify, with necessary specifity, the person or persons to
whom the statements were made (see Dillon v City of New York, 261
AD2d at 38), resulting in an insufficiently pleaded cause of action.
Moreover, Johnson's remark to Oliverre allegedly characterizing Supple
as "crazy" does not appear to be a defamatory statement concerning
Supple; Johnson did not tell Oliverre that she believed that Supple was
"crazy," but only that she telephoned Supple's references and told them
that Supple was "crazy." To the extent that the Court may infer that
the substance of the statement was Johnson's assertion that Supple was
"crazy," this would appear to be a hyperbolic expression of opinion
and, thus, nonactionable (see generally Mann v Abel, 10 NY3d at 276).

Since, however, Johnson's alleged statement that Supple's
employment was being terminated because Supple was stealing was
sufficiently pleaded, and constituted slander per se, the Supreme Court
properly denied that branch of Johnson's motion which was to dismiss so
much of the eighth cause of action as was premised on this allegedly
defamatory statement.

The bold is mine.

CPLR R. 5015(a); 22 NYCRR 202.48; Stipulatons

CPLR R. 5015 Relief from judgment or order
(a) On motion
(1) excusable default…

22 NYCRR 202.48 Submission of orders, judgments and decrees for signature

Klughaupt v Hi-Tower Contrs., Inc., 2009 NY Slip Op 05750 (App. Div., 2nd, 2009)

The Supreme Court providently exercised its discretion in denying the
plaintiff's motion for leave to enter a default judgment against the
defendant Lynch Park, LLC (hereinafter Lynch Park), and in granting
Lynch Park's cross motion to vacate its default in answering and for
leave to serve a late answer (see CPLR 5015). Considering the
lack of any prejudice to the plaintiff as a result of the relatively
short three-week delay in serving an answer, the existence of a
potentially meritorious defense, and the public policy favoring the
resolution of cases on the merits, the Supreme Court properly excused
the de minimis delay in answering (see Schonfeld v Blue & White Food Prods. Corp., 29 AD3d 673; Yonkers Rib House, Inc. v 1789 Cent. Park Corp., 19 AD3d 687; Trimble v SAS Taxi Co., Inc., 8 AD3d 557; see e.g. Perez v Linshar Realty Corp., 259 AD2d 532; Swidler v World-Wide Volkswagen Corp., 85 AD2d 239, cf. Leifer v Pilgreen Corp.,AD3d,
2009 NY Slip Op 03872 [2d Dept 2009] [10-month delay in moving to
vacate default in answering or appearing, with no meritorious defense,
does not warrant vacatur of default]).

Diane v Ricale Taxi, Inc., 2009 NY Slip Op 05680 (App. Div., 1st, 2009)

Plaintiff fails to show that a judgment was ever issued, much
less served on appellant. The only exhibits attached to plaintiff's
opposition are an order granting a default judgment and directing an
inquest, with no notice of entry or affidavit of service, and a copy of
this Court's subsequent order (291 AD2d 320) involving another
defendant and containing no references to any judgment in any amount
against appellant. Accordingly, it does not appear that appellant's
one-year time limit under CPLR 5015(a)(1) to move for relief from a
judgment or order ever began to run, and appellant's motion should not
have been denied as untimely. For present purposes, appellant, who was
named a defendant only because he was one of two employees who
regularly drove the taxi involved in the accident, comes forward with
sufficient evidence that he could not have been the driver since the
accident occurred at night while he worked only days. Indeed, the
possibility that appellant had nothing to do with the accident would,
given a reasonable excuse, warrant vacatur of the default judgment in
the interest of justice even if the one-year time limit had run (see Johnson v Minskoff & Sons, 287 AD2d 233, 236 [2001]). We accept appellant's excuse that he did not understand the import of the legal documents he was [*2]receiving and trusted his employer's assurances that it would take care of the matter for him.

Another rare, "in the interests of justice" vacatur.

Rowley v Amrhein, 2009 NY Slip Op 05834 (App. Div., 1st, 2009)

Defendant's challenge to the judgment on the ground that it
inaccurately reflects the stipulation of settlement by including terms
that are inconsistent therewith is not preserved for appellate review
since there is no record that defendant raised
any objection to plaintiff's proposed judgment, as required by 22 NYCRR 202.48(c)(2) (see Salamone v Wincaf Props., 9 AD3d 127, 140 [2004], lv dismissed
4 NY3d 794 [2005]). Defendant's claim that he had no opportunity to
object to plaintiff's proposed judgment because he was not properly
served with a copy thereof is properly directed to Supreme Court in a
motion to vacate the judgment pursuant to CPLR 5015(a)(1), not to this
Court on appeal (see McCue v McCue, 225 AD2d 975, 976 [1996]; Levy v Blue Cross & Blue Shield of Greater N.Y., 124 AD2d 900, 901 [1986]).

Defendant's challenges to the judgment on the bases that it
grants plaintiff a divorce on a ground that he contests and fails to
adjudicate his counterclaim allege substantive errors in the judgment
that affect his substantial rights and not mere inconsistencies with
the intentions of the court and the parties as demonstrated by the
record. Thus, review may be obtained either through an appeal from the
judgment or through a motion to vacate pursuant to CPLR 5015(a) (Salamone,
9 AD3d at 133-134). The record reveals that Supreme Court did not
address the grounds for divorce or defendant's counterclaim.
Accordingly, we remand the matter for further proceedings to determine
these issues.

Defendant's contention that the stipulation disposing of the
parties' economic issues is unenforceable against him is not properly
before us, since defendant never moved in Supreme Court to set aside
the stipulation (see Garrison v Garrison, 52 AD3d 927, 928 [2008]; Hopkins v Hopkins, 97 AD2d 457 [1983]). In any event, the terms of the stipulation were memorialized in [*2]a
proposed preliminary conference order that the court reviewed during
the October 30, 2007 proceedings, the stipulation was signed and
initialed by both parties, and the court expressly informed the parties
on the record that it was a binding contract. The stipulation contained
no express reservation of the right not to be bound until the execution
of a more formal agreement. To the contrary, all the essential terms
and conditions of an agreement were set forth in the stipulation, and
all that remained was their translation into a more formal document (see Brause v Goldman, 10 AD2d 328, 332 [1960], affd 9 NY2d 620 [1961]).

The bold is mine.

Experts, Qualificaton, Evidence, and Hearsay

County of Nassau v Fuentes, 2009 NY Slip Op 05843 (App. Div., 2nd, 2009)

In support of his motion for summary judgment dismissing the complaint,
the defendant made a prima facie showing of entitlement to judgment as
a matter of law by submitting an affidavit in which he denied receiving
notice, prior to the commencement of this action, that his vehicle
might be subject to a forfeiture action (see Nassau County Administrative Code § 8-7.0[g][4][a]; County of Nassau v Bassen, 14 Misc 3d 633; see generally Alvarez v Prospect Hosp.,
68 NY2d 320). However, in opposition to that showing, the plaintiff,
County of Nassau, raised a triable issue of fact by producing copies of
a "Vehicle Seizure Notice," purportedly signed by the defendant at the
time of his arrest for the underlying offense, and a return receipt
card, also purportedly signed by the defendant, acknowledging receipt
of a letter the County allegedly sent to him prior to the commencement
of this action. Both documents advised that the subject vehicle might
be the subject of a forfeiture action. While we conclude that the
County's showing was sufficient to raise an issue of fact warranting
denial of the defendant's motion, contrary to the County's contention,
it did not warrant the granting of that branch of its cross motion
which was for summary judgment on the complaint, as the genuineness of
the defendant's purported signatures on the documents described above
presents an issue of fact (see Seoulbank, N.Y. Agency v D & J Import & Export Corp., 270 AD2d 193, 194; Dyckman v Barrett, 187 AD2d 553, 555).

Saunders v 551 Galaxy Realty Corp., 2009 NY Slip Op 05763 (App. Div., 2nd, 2009)

The defendants failed to submit sufficient evidence in admissible form
to make a prima facie showing of entitlement to judgment as a matter of
law. The defendants offered no evidence, other than inadmissible
hearsay, as to why the air conditioner fell from the window. The
defendants failed to show that they were not negligent in their initial
inspection of the air conditioner's installation. No evidence was
provided as to the defendants' general policy on inspecting and
maintaining air conditioning units installed on the premises, and the
defendants failed to show that, as the owners of the property, they
relinquished exclusive control of the apartment and the window from
which the air conditioner fell, to a tenant who had no lease, thus
absolving them of liability (see Spanbock v Fifty Fourth St. Condominium, 3
AD3d 395). Accordingly, the Supreme Court properly denied the
defendants' motion for summary judgment dismissing the complaint
without considering the sufficiency of the plaintiff's opposition
papers (see Winegrad v New York Univ. Med. Ctr., 64 NY2d 851, 853).

Schechter v 3320 Holding LLC, 2009 NY Slip Op 05684 (App. Div., 1st, 2009)

For a witness to be qualified as an expert, the witness must possess
the requisite skill, training, education, knowledge or experience from
which it can be assumed that the opinion rendered is reliable (Matott v Ward,
48 NY2d 455, 459 [1979]). Here, Santiago had no formal training or
education, and does not possess any certification or license, with
respect to elevator maintenance or repair. He was not, however,
precluded from being qualified as an expert for lack of formal training
and education; he could have been qualified if through "long
observation and actual experience" (Price v New York City Hous. Auth.,
92 NY2d 553, 559 [1998] [internal quotation marks and brackets
omitted]) he possessed sufficient skill, knowledge and experience in
elevator maintenance and repair to support an assumption that his
opinion regarding the cause of the interlock's failure was reliable.
But Imperial Elevator failed to submit evidence demonstrating that
Santiago possessed such skill, knowledge and experience (see Rosen v Tanning Loft, 16 AD3d 480 [2005], citing, among other cases, Hofmann v Toys "R" Us, NY Ltd. Partnership, 272 AD2d 296 [2000]; see also Hellert v Town of Hamburg, 50 AD3d 1481 [2008], lv denied
11 NY3d 702 [2008]). No evidence was submitted demonstrating what
on-the-job training Santiago received from the coworker at his prior
employer; Santiago's duties as a "maintenance man" — "check[ing] for
oil, check[ing] [and cleaning] the [inter]locks," "cleaning the motor
room, cleaning the top of the ca[b], [and] cleaning the pit [beneath
the elevator]" — do not suggest that he can render a reliable opinion
regarding the cause of the failure of the interlock; and Santiago's
deposition testimony does not demonstrate that he is familiar with the
laws, rules, regulations, and accepted customs and practices in the
field of elevator maintenance and repair (cf. Efstathiou v Cuzco, LLC, 51 AD3d 712
[2008]). Because Imperial Elevator failed to demonstrate that Santiago
is qualified to render a reliable opinion regarding the cause of the
failure of the interlock, it failed to raise a triable issue of fact
with respect to the issue of its negligence.

Continue reading “Experts, Qualificaton, Evidence, and Hearsay”

CPLR R. 3212(a)(f) — an Unusual Reasonable Excuse & Judicial Estoppel

CPLR R. 3212
(a) Time; kind of action [120-day rule]
(f) Facts unavailable to opposing party

Madison Third Bldg. Cos., LLC v Berkey, 2009 NY Slip Op 05686 (App. Div., 1st, 2009)

Inasmuch as defendants' attorney reasonably interpreted a court
attorney's oral directive at a post-note of issue conference that
summary judgment motions "be made in accordance with the CPLR," to mean
that the time to make a summary judgment motion had been extended from
the 45 day deadline set in two pre-note of issue conference orders to
the 120-day outer limit permitted by CPLR 3212(a), such excuse was
reasonable under the
circumstances and the motion should have been considered on its merits.

I put the whole thing in bold.

Tedesco v Tedesco, 2009 NY Slip Op 05767 (App. Div., 2nd, 2009)

The appellant Riccardo Tedesco, Sr., is a plaintiff in Action Nos. 1
and 3, and a defendant in Action No. 2. The three actions, which were
joined for trial, concern a dispute between Tedesco, Sr., and two of
his children concerning the ownership of certain real property. We
agree with the Supreme Court that Tedesco, Sr., cannot now be heard to
claim ownership of the properties in question, having denied ownership
of any real property in prior judicial proceedings that took place
after the alleged real estate transactions at issue here. The doctrine
of judicial estoppel [*2]precludes a
party from taking a position in one legal proceeding which is contrary
to that which he or she took in a prior proceeding, simply because his
or her interests have changed (see Festinger v Edrich, 32 AD3d 412).
The doctrine will be applied where the party has secured a judgment in
his or her favor by adopting a certain position in the prior proceeding
(see Matter of One Beacon Ins. Co. v Espinoza, 37 AD3d 607; Matter of State Farm Mut. Auto. Ins. Co. v Allston, 300 AD2d 669).

Moreover, the issue of judicial estoppel was previously decided
on the merits by the Supreme Court in an order dated December 7, 2006 (see Tedesco v Tedesco, 13 Misc 3d 1245[A]).
Tedesco, Sr.'s appeal from that order was dismissed for failure to
perfect. The dismissal of that appeal constituted an adjudication on
the merits with respect to all issues which could have been reviewed
therein (see Tri-State Sol-Aire Corporation v Martin Assoc., Inc., 7 AD3d 514). The court's finding of judicial estoppel is therefore law of the case (see Brownrigg v New York City House. Auth., 29 AD3d 721).

Tedesco, Sr.'s contention that the motion for summary judgment
was premature is without merit. He failed to offer any evidentiary
basis to suggest that discovery may lead to relevant evidence. His hope
and speculation that evidence sufficient to defeat the motion might be
uncovered during discovery was an insufficient basis to deny the motion
(see Brewster v Five Towns Health Care Realty Corp., 59 AD3d 483; Conte v Frelen Assoc., LLC, 51 AD3d 620).

Discovery: CPLR § 3126 ;R. 3124 & 22 NYCRR § 202.7; Spoilation & Waiver & a little CPLR R. 3212(a)

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

CPLR R. 3124 Failure to disclose; motion to compel disclosure

22 NYCRR § 202.7 Calendaring of Motions; Uniform Notice of Motion Form; Affirmation of Good Faith
(a)(2)

Holland v W.M. Realty Mgt., Inc., 2009 NY Slip Op 05844 (App. Div., 2nd, 2009)

Under the common-law doctrine of spoliation, when a party
negligently loses or intentionally destroys key evidence, the
responsible party may be sanctioned under CPLR 3126 (see Ingoglia v Barnes & Noble Coll. Booksellers, Inc., 48 AD3d 636, 637; Baglio v St. John's Queens Hosp., 303
AD2d 341, 342). However, striking a pleading as a sanction for
spoliation is appropriate only where the missing evidence deprives the
moving party of the ability to establish his or her claim or defense (see Enstrom v Garden Place Hotel, 27 AD3d 1084, 1086; Iannucci v Rose, 8 AD3d 437, 438; Baglio v St. John's Queens Hosp., 303 AD2d at 342).

The Supreme Court has broad discretion in determining what, if any, sanction should be imposed for the spoliation of evidence (see Iannucci v Rose, 8 AD3d at 438; Allstate Ins. Co. v Kearns, 309 AD2d 776; Puccia v Farley, 261
AD2d 83, 85). We should substitute our judgment for that of the Supreme
Court only if its discretion was exercised improvidently (see Melendez v City of New York, 2 AD3d 170, 170-171).

A motion for leave to renew "shall be based upon new facts not
offered on the prior motion that would change the prior determination"
(CPLR 2221[e][2]) and "shall contain reasonable justification for the
failure to present such facts on the prior motion" (CPLR 2221[e][3]).
However, it is within a court's discretion to grant leave to renew upon
facts known to the moving party at the time of the original motion (see J.D. Structures v Waldbaum, 282 AD2d 434, 435).

Under the peculiar facts of this action, the Supreme Court
should have granted that branch of the plaintiffs' motion which was for
leave to renew his earlier opposition, and, upon renewal, the prior
order of preclusion should have been vacated. It was uncontested that
the mold samples taken in 2002 had a testable "shelf life" of only six
months. That being the case, the destruction of the swabbed mold
samples caused no prejudice to the defendant inasmuch as those samples
had quickly and naturally lost their testable value (see Bannon v Auerbach, 6 Misc 3d 219,
220-221). The defendant, having been put on notice of the plaintiffs'
claims beginning in December 2001, could have obtained its own mold
samples in 2002, but did not do so. Moreover, the wood sample taken
from the apartment has been recently located, for reasons adequately
explained in the plaintiffs' renewal papers.

Jennosa v Vermeer Mfg. Co., 2009 NY Slip Op 05845 (App. Div., 2nd, 2009)

Moreover, under the circumstances of this case, Governale's loss of the
undeveloped film of the post-accident scene did not warrant the Supreme
Court's determination that he was precluded from offering certain
evidence at trial and allowing an adverse inference charge against him.
"When a party negligently [loses] or intentionally destroys key
evidence, thereby depriving the non-responsible party from being able
to prove its claim or defense, the responsible party may be sanctioned
by the striking of its pleading" (Utica Mut. Ins. Co. v Berkoski Oil Co., 58 AD3d 717,
718). However, "where the evidence lost is not central to the case or
its destruction is not prejudicial, a lesser sanction, or no sanction,
may be appropriate" (Klein v Ford Motor Co., 303 AD2d 376, 377).
Contrary to the plaintiff's contentions, the post-accident photographs
that were lost by Governale were not central to the case, and the loss
did not prejudice the plaintiff in opposing Governale's motion for
summary judgment, or otherwise. The plaintiff himself testified that he
inspected the premises prior to commencing his work and that the
underground hose only became visible after it was entangled in the
stump grinder. Thus, any contention that the post-accident photographs
would have depicted conditions demonstrating that Governale had
constructive notice of the alleged dangerous condition is speculative.
Under these circumstances, Governale's loss of the post-accident
photographs did not warrant the imposition of a sanction.

Jones v Grand Opal Constr. Corp., 2009 NY Slip Op 05748 (App. Div., 2nd, 2009)

The defendants waived their right to conduct physical examinations
of the plaintiffs by their failure to arrange for such examinations
within the 45-day period set forth in the parties' preliminary
conference order (see Rodriguez v Sau Wo Lau, 298 AD2d 376; James v New York City Tr. Auth., 294 AD2d 471, 472; Schenk v Maloney, 266
AD2d 199, 200), and by their failure to move to vacate the note of
issue within 20 days after service of it and the certificate of
readiness (see 22 NYCRR 202.21[e]; James v New York City Tr. Auth., 294 AD2d 471, 472; Schenk v Maloney, 266 AD2d 199, 200; Williams v Long Is. Coll. Hosp., 147
AD2d 558, 559). However, under certain circumstances and absent a
showing of prejudice to the opposing party, the court may exercise its
discretion to relieve a party of a waiver of the right to conduct a
physical examination (see Barbosa v Capolarello, 52 AD3d 629; Cespuglio v SA Bros. Taxi Corp., 44 AD3d 697, 698; Williams v Long Is. Coll. Hosp., 147 AD2d 559, 559; Kanterman v Palmiotti, 122
AD2d 116). Here, the plaintiffs served a note of issue and statement of
readiness 10 days after the expiration of the time period set forth in
the preliminary conference order for conducting physical examinations
of the plaintiffs and five months prior to the date in said order for
filing a note of issue. Within seven days after the plaintiffs
prematurely filed a note of issue, the defendants designated an
orthopedist and a neurologist to examine the plaintiffs. Thereafter,
the defendants promptly made the instant motion, inter alia, to compel
the plaintiffs to submit to physical examinations. No prejudice to the
plaintiffs has been shown by reason of the short delay, since the case
will be retained on the trial calendar (see Williams v Long Is. Coll. Hosp., 147 AD2d 558, 560; Kanterman v Palmiotti, 122 AD2d 116, 117). Accordingly, the Supreme Court providently exercised its discretion in relieving the defendants of [*2]their
waiver and in granting that branch of the defendants' motion which was
to compel the plaintiffs to submit to physical examinations.

The Supreme Court providently exercised its discretion in
granting that branch of the defendants' motion which was for leave to
extend their time to move for summary judgment to the extent of
permitting such motion no later than 45 days after the completion of
physical examinations, since there was significant discovery
outstanding at the time the note of issue was filed (see CPLR 3212[a]; Gonzalez v 98 Mag Leasing Corp., 95 NY2d 124; Marks v Mode, 53 AD3d 533; Sclafani v Washington Mut., 36 AD3d 682; Herrera v Felice Realty Corp., 22 AD3d 723, 724).

Molyneaux v City of New York, 2009 NY Slip Op 05610 (App. Div., 1st, 2009)

The court improperly granted plaintiffs' CPLR 3126 motion in the
absence of the required affirmation by their attorney that the latter
had conferred with defendants' attorney in a good faith effort to
resolve the issues raised by the motion (22 NYCRR 202.7[a][2]; see Cerreta v New Jersey Tr. Corp.,
251 AD2d 190 [1998]). In addition, there was also no clear showing that
any failure by the City to comply with the conditional order was
willful, contumacious or in bad faith (see Reidel v Ryder TRS, Inc., 13 AD3d 170, 171 [2004]).

Defendants represent in their brief that they "recently filed a
stipulation withdrawing [their] appeal from the August [10] 2007 Order"
denying their cross motion seeking, inter alia, renewal of their motion
for summary judgment; such withdrawal apparently was in response to [*2]such
leave having been granted during the pendency of the appeal. The
stipulation, however, is not on file with the Clerk of this Court.
Accordingly, we deem the appeal from the August 10, 2007 order
abandoned, and dismiss it.

The bold is mine.

Judicial Notice in a Quirky Case & CPLR R. 3212 & A Twist at the End.

Williams v Naylor, 2009 NY Slip Op 05770 (App. Div., 2nd, 2009)

The plaintiffs raise legal arguments which appear on the face of the
record and could not have been avoided had they been brought to the
attention of the Supreme Court. Accordingly, the grounds for reversal
urged by the plaintiffs may be considered by this Court even though
they have been raised for the first time on appeal (see Matter of 200 Cent. Ave., LLC v Board of Assessors, 56 AD3d 679, 680; Buywise Holding, LLC v Harris, 31 AD3d 681, 682; Matter of State Farm Mut. Auto. Ins. Co. v Olsen, 22 AD3d 673, 674; Beepat v James, 303 AD2d 345, 346; Weiner v MKVII-Westchester, 292 AD2d 597, 598; Block v Magee, 146 AD2d 730, 732; 11 Carmody-Wait 2d § 72:133, at 347-348).

The Supreme Court improperly granted the oral application of the
defendant Emeka Okeke, which was, in effect, for summary judgment
dismissing the complaint insofar as asserted against him. The oral
application was not supported by any motion papers, no formal motion
was made on notice to the plaintiff, and the application was made after
jury selection had been completed and more than 120 days after the note
of issue had been filed, without any showing of good cause (see CPLR 3212[a]; Brill v City of New York, 2 NY3d 648; Giannattasio v Han Suk Kang, 30 AD3d 375; Long v Children's Vil., Inc., 24 AD3d 518; Minucci v City of New York, 303 AD2d 473; Hilton [*2]v City of New Rochelle, 298 AD2d 360; Diaz v New York City Health & Hosps. Corp., 289 AD2d 365, 366; Martin Iron & Constr. Co. v Grace Indus., 285 AD2d 494, 495).

In light of our discretion to "take judicial notice of a record" in "the pending matter" (Chateau Rive Corp. v Enclave Dev. Assoc., 22 AD3d 445,
446), we take judicial notice of the proceedings held on November 1,
2007, in this action. Under the circumstances of this case, upon
remittitur to the Supreme Court, Queens County, all further proceedings
in this action shall be conducted before another Justice (see Ling Fei Sun v City of New York, 55 AD3d 795, 796; Doe v Department of Educ. of City of N.Y., 54 AD3d 352, 354).

In light of our determination, the parties' remaining contentions need not be addressed.

DILLON, J.P., MILLER, LEVENTHAL and CHAMBERS, JJ., concur.

2008-03467 DECISION & ORDER ON MOTION

Kamil Williams, etc., et al., appellants, v Margaret

Naylor, etc., et al., respondents.

(Index No. 25862/04)

Motion by the respondent on an appeal from a judgment of the
Supreme Court, Queens County, entered March 3, 2008, to strike stated
portions of the appellants' appendix and brief on the ground that the
appendix contains matter dehors the record, and that the brief refers
to matter dehors the record. By decision and order on motion of this
Court dated February 18, 2009, the motion was held in abeyance and
referred to the panel of Justices hearing the appeal for determination
upon the argument or submission thereof.

Upon the papers filed in support of the motion, the papers
filed in opposition thereto, and upon the argument of the appeal, it is

ORDERED that the motion is denied.

DILLON, J.P., MILLER, LEVENTHAL and CHAMBERS, JJ., concur.

The bold is mine.

Wow, just Wow. Look at the last sentence in the last bolded paragraph.

CPLR R. 3212 When and Why

CPLR R. 3212

Light v Light, 2009 NY Slip Op 05847 (App. Div., 2nd, 2009)

A motion for summary judgment may be made after issue has been
joined based on CPLR 3211(a) grounds which have been asserted in the
answer (see Fischer v RWSP Realty, LLC, 53 AD3d 594, 595; Mann v Malasky, 41 AD3d 1136).
Accordingly, the appellant could move for summary judgment dismissing
the complaint insofar as asserted against her after she served her
answer, based upon the affirmative defense of failure to state a cause
of action (see CPLR 3211[a][7]; CPLR 3211[e]). Contrary to the
plaintiff's contention, the doctrine of the law of the case does not
apply, as the Supreme Court did not determine, on the merits, whether
the complaint stated valid causes of action on the previous motion
pursuant to CPLR 3211(a)(1) (see Kopsidas v Krokos, 18 AD3d 822; Gay v Farella, 5 AD3d 540).

…

The Supreme Court improvidently exercised its discretion in
granting that branch of the plaintiff's motion which was to preclude
certain testimony and evidence (see Kerman v Martin Friedman, C.P.A., P.C., 21 AD3d 997; Assael v Metropolitan Tr. Auth., 4 AD3d 443), as the plaintiff failed to demonstrate that she was entitled to the drastic remedy of preclusion (see Pepsico, Inc. v Winterthur Intl. Am. Ins. Co., 24 AD3d 742).

The Supreme Court providently exercised its discretion in
denying that branch of the appellant's cross motion which was to
disqualify the plaintiff's attorney, as the appellant failed to
establish that the attorney's testimony was necessary (see Hudson Val. Mar., Inc. v Town of Cortlandt, 54 AD3d 999, 1000; Bentvena v Edelman, 47 AD3d 651).

I don't know why, but I think this decision will wind up being cited more than most of the other 3212 decisions.

The bold is mine.