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.

CPLR § 3101(a)

CPLR § 3101 Scope of disclosure

Rivera v NYP Holdings Inc., 2009 NY Slip Op 04706 (App. Div., 1st, 2009)

We conclude that the denial of defendants' motion to compel constituted
an improvident exercise of discretion. Full disclosure is required of
"all matter material and necessary" to the defense of an action (CPLR
3101[a]), and the words "material and necessary" are "to be interpreted
liberally to require disclosure . . . of any facts bearing on the
controversy" (Allen v Crowell-Collier Publ. Co., 21 NY2d 403,
406 [1968]). Defendants are entitled to the discovery they seek in
their efforts both to establish their defense of truth to plaintiff's
defamation claims (see Wright v Snow, 175 AD2d 451 [1991], lv dismissed 79 NY2d 822 [1991]), and to defend against plaintiff's assertion of damage to his reputation (cf. Burdick v Shearson Am. Express, 160 AD2d 642 [1990], lv denied 76 NY2d 706 [1990]). Moreover, defendants are entitled to the opportunity to demonstrate the truth of the articles as a wholesee Miller v Journal News,
211 AD2d 626, 627 [1995]), warranting disclosure even as to assertions
in those articles that are not directly challenged in plaintiff's
complaint. Therefore, the inquiries related to grand jury testimony by
plaintiff, information sought from or provided by plaintiff to the
Commission on [*2]Judicial Conduct, and
plaintiff's arrest record, if any, seek information sufficiently
material and relevant to the defense of the action to warrant

Laguna v Mario's Express Serv., Inc., 2009 NY Slip Op 04869 (App. Div., 2nd, 2009)

In an action to recover damages for personal injuries, the plaintiff
appeals, as limited by her brief, from so much of an order of the
Supreme Court, Kings County (Bayne, J.), dated November 21, 2007, as
granted the defendants' motion for renewal and reargument of their
prior oral application for access to the plaintiff's medical records
"beyond a 3 year period," which was denied by order of the same court
(Ambrosio, J.) dated June 28, 2007, and upon renewal and reargument
granted the defendants access to "the complete medical records relating
the plaintiffs' initial diagnosis & follow up treatment to present
for cerebral palsy."

ORDERED that the order dated November 21, 2007, is reversed
insofar as appealed from, on the facts and in the exercise of
discretion, with costs, and the motion is denied.

The evidence submitted by the defendants upon their motion for
renewal and reargument was insufficient to justify a new determination.
The defendants failed to establish that the additional disclosure was
material and necessary to the defense of the action (see Cynthia B. v New Rochelle Hosp. Med Ctr, 60 NY2d 452, 465, 457; Chevrin v Macura, 28 AD3d 600; DeStrange v Lind, 277
AD2d 344), nor did they demonstrate that "access to earlier medical
records would result in the discovery of admissible or relevant
evidence" (DeStrange v Lind, 277 AD2d at 345).

The bold is mine.